Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 1483 (MP)

Afsar Ara v. Iqbal Sharif

2013-11-28

K.K.TRIVEDI

body2013
Judgment: 1. This second appeal by the appellant/plaintiff under section 100 of the Code of Civil Procedure is against the judgment and decree dated 27-2-2007, passed in regular Civil Appeal No. 258-A/2006 passed by XI Additional District Judge, Bhopal (Fast Track), in the appeal filed by the defendant/respondent No. 1, arising out of the judgment and decree dated 27-7-2006 passed in regular Civil Suit No. 44-A/2005 of the Court of I Addl. Civil Judge Class-I, Bhopal. The appeal was admitted for hearing on the following substantial questions of law:-- "1. Whether the findings of the Appellate Court holding the suit of the appellant, on the grounds of bona fide need of sub-letting and of nonpayment of rent under section 12(1)(a)(b) and (f) of the M.P. Accommodation Control Act, 1961 is and not maintainable in the Civil Court, is sustainable in view of decision of the Apex Court in the matter of Dhannalal v. Kalawatibai, reported in AIR 2002 SC 2572 and in the matter of Sulochana v. Rajinder Singh decided by Apex Court on 16-5-2008 in Civil Appeal No. 3636 of 2008? 2. Whether the judgment and decree of the Appellate Court reversing the findings of the trial Court decreeing the suit against the respondents on the grounds enumerated under section 12(1)(f) of the M.P. Accommodation Control Act, is perverse and contrary to law?" The sole question which is to be examined is whether the appellant who is also entitled to claim herself being a specified landlady under the provisions of M.P. Accommodation Control Act, 1961 (hereinafter referred to as the Act for brevity) as defined under section 23-J was also entitled to file a suit for eviction of the tenant under the provisions of section 12(1) of the Act or not before the Civil Court, and whether a decree could be granted for eviction of a tenant under the aforesaid provisions by the Civil Court or such jurisdiction is barred under the provisions of section 45 of the Act. 2. Undisputedly, the appellant is a widow. She claimed to be the landlady of the respondent-tenant. It was alleged that the suit property was obtained in partition by the late husband of the appellant. After the death of husband, who expired on 30-9-1986, the appellant needed the suit accommodation for the purposes of starting a business for the major son of the appellant. She claimed to be the landlady of the respondent-tenant. It was alleged that the suit property was obtained in partition by the late husband of the appellant. After the death of husband, who expired on 30-9-1986, the appellant needed the suit accommodation for the purposes of starting a business for the major son of the appellant. It was also alleged that the respondent-tenant was in arrears of rent for many months and despite the demand, the rent was not paid. The respondent-tenant has sub-let the suit accommodation to the respondent No. 2 without the consent of the appellant and, therefore, a composite suit for eviction of the tenant was filed. The suit was contested by the respondent-defendant on the grounds that the rent of the suit accommodation was paid, it was denied that suit shop was sub-let to the respondent/defendant No. 2. It was contended that the enhanced rate of the rent was being paid by the respondent/defendant. It was contended that for the bona fide need of the suit shop in fact the appellant should have filed an application before the Rent Controlling Authority. This being so, it was contended that the suit was liable to be dismissed. 3. The trial Court framed the issues and after recording the evidence came to the conclusion that the appellant/plaintiff has failed to prove that the respondent/defendant No. 1 has sub-let the shop to respondent/defendant No. 2. It was also held that the respondent/defendant was not in arrears of rent. However, it was held that the suit accommodation was required bona fidely by the appellant for establishing the shop of her son and only on this count, the suit was decreed. The respondent/defendant preferred an appeal before the first Appellate Court alleging that the suit for grant of decree of eviction of tenant could not have been decreed on bona fide requirement as the same is within the exclusive jurisdiction of the Rent Controlling Authority under the provisions of section 23-A of the Act and thus to that extent, the suit of the appellant was barred before the Civil Court under the provisions of section 45 of the Act. If after holding that the appellant requires the suit accommodation bona fidely for the need, instead of granting a decree, the trial Court should have directed the appellant to file an application under the provisions of section 23-A Chapter III-A of the Act. If after holding that the appellant requires the suit accommodation bona fidely for the need, instead of granting a decree, the trial Court should have directed the appellant to file an application under the provisions of section 23-A Chapter III-A of the Act. This being so, it was contended that the decree as granted by the trial Court was barred under the law and, therefore, the suit as a whole was liable to be dismissed. The first Appellate Court allowed the appeal of the respondent/defendant, set aside the judgment and decree of the Court below. Hence, this appeal on the aforesaid substantial questions of law filed by the appellant. 4. It is, vehemently, contended by the learned counsel for the appellant that since a composite suit was filed by the appellant before the Civil Court in other grounds also mentioned in section 12(1) of the Act, such a suit was maintainable. There is no bar created under the law that such a composite suit cannot be filed before the Court. It is further contended that in fact if a decree could not be granted under the provisions of section 12(1)(a) and12(1)(b) of the Act in a composite Civil Suit, the jurisdiction of the Civil Court is not specifically barred under section 45 of the Act and, therefore, the findings recorded by the learned first Appellate Court in this respect are perverse and are liable to be set aside. It is contended that in view of the law laid down by the Apex Court in the case of Sulochana v. Rajinder Singh, 2009(1) JLJ 244, the bar under section 45 of the Act could not come into play and the decree granted by the Court below was not to be set aside. 5. Per contra, it is contended by learned Senior Counsel for the respondents that the law is not properly examined. 5. Per contra, it is contended by learned Senior Counsel for the respondents that the law is not properly examined. There is a specific bar for exercising those powers which are conferred on the Rent Controlling Authority under Chapter III-A of section 23-A of the Act and, therefore, even if a composite suit was filed, when other grounds on the basis of which, the jurisdiction of the Civil Court was availed of by the appellant, were not made out and the claim in that respect was rejected, the Civil Court become a Court having no jurisdiction to entertain the claim with respect to grant of decree of eviction on bona fide requirement. The suit as filed was not competent and, therefore, it was rightly dismissed by the lower Appellate Court since this aspect was not considered by the trial Court. It is, thus, contended that the reversing judgment and decree passed by the first Appellate Court is not liable to be interfered with and the appeal is liable to be dismissed. 6. First of all, the provisions of section 45 of the Act are to be interpreted and to be understood as to whether a complete bar is created by the statute in exercise of jurisdiction by the Civil Court in such tenancy suit. For the said purposes, section 45 of the Act is reproduced, which read thus:-- "45. Jurisdiction of Civil Courts barred in respect of certain matters.--(1) Save as otherwise expressly provided in this Act, no Civil Court shall entertain any suit or proceeding insofar as it relates to the fixation of standard rent in relation to any accommodation to which this Act applies or to any other matter, which the Rent Controlling Authority is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Rent Controlling Authority under this Act shall be granted by any Civil Court or other authority. (2) Nothing in sub-section (1) shall be construed as preventing a Civil Court from entertaining any suit or proceeding for the decision of any question of title to any accommodation to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such accommodation." A plain and simple reading of this provision makes it clear that unless there is expressly provided in the Act, any Civil Court shall not entertain any such or proceeding so far as it relates to the fixation of standard rent to any accommodation to which this Act applies or to any other matter which the Rent Controlling Authority is empowered by or under this Act to decide. Reading conjointly the special provision of section 23-A, Chapter III-A of the Act, it is clear that a special provision is made for the specified landlord for filing a suit before any of the Rent Controlling Authority. The special provision as prescribed in section 23-A is reproduced for consideration as a whole:-- "23-A. Special provision for eviction of tenant on ground of bona fine requirement.--Notwithstanding anything contained in any other law for the time being in force or contract to the contrary, a landlord may submit an application, signed and verified in a manner provided in Rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908) as if it were a plaint to the Rent Controlling Authority on one or more of the following grounds for an order directing the tenant to put the landlord in possession of the accommodation, namely:-- (a) that the accommodation let for residential purposes is required "bona fide" by the landlord for occupation as residence for himself or for any member of his family, or for any person for whose benefit, the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. Explanation.--For the purposes of this clause, "accommodation let for residential purposes" includes-- (i) any accommodation which having been let for use as a residence is without the express consent of the landlord, used wholly or partly for any non-residential purpose; (ii) any accommodation which has not been let under an express provision of contract for non-residential purpose; (b) that the accommodation let for non-residential purposes is required "bona fide" by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters, if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned; Provided that where a person who is a landlord has acquired any accommodation or any interest therein by transfer, no application for eviction of tenant of such accommodation shall be maintainable at the instance of such person unless a period of one year has elapsed from the date of such acquisition." 7. It is seen that the restriction on eviction of tenant prescribed under the provisions of section 12 of the Act, similar words are used and it is specifically provided that for certain grounds, an action can be initiated against the tenant for his/her eviction by a landlord. There itself a bar created under section 12 of the Act in the shape of protection to a tenant from eviction and only on certain grounds, a suit for eviction can be filed. The entire Act itself is a special legislation to govern the rents and buildings within the State and, therefore, if one provision is made, making special or speedy provision for eviction of tenants in given circumstances, the bar under section 45 of the Act will not completely come into play against the specified landlord. The intention of the legislature is not to forbid the specified landlord to resort to the remedies of filing of a suit before the Civil Court for eviction of tenants, completely rather there is a special provision for speedy trial of eviction cases of specified landlords, only on the ground of bona fide needs. 8. The intention of the legislature is not to forbid the specified landlord to resort to the remedies of filing of a suit before the Civil Court for eviction of tenants, completely rather there is a special provision for speedy trial of eviction cases of specified landlords, only on the ground of bona fide needs. 8. In reference to above, if the law laid down by the Apex Court in the case of Dhannalal v. Kalawatibai and others, AIR 2002 SC 2573 is looked into, in none but the specific words the Apex Court has said that a specified landlord if claims the eviction solely on the ground of bona fide need, he or she has to go before the Rent Controlling Authority. The three parameters prescribed by the Apex Court in paragraph 24 of the report read thus:-- "(i) Where a claim for eviction is filed by a landlord, or a co-landlord, belonging to any one of the five categories defined in section 23-J of the Act, as the sole applicant without objection by other co-landlords who have not joined as co-applicants and the nature of claim for eviction is covered by section 23-A(b) of the Act, the proceedings would be only before the Rent Controlling Authority. (ii) where a claim for eviction is filed by a landlord or by such a co-landlord who does not belong to any of the categories defined by section 23-J and the other co-landlord/landlady falling in one of the categories defined in section not joined as co-plaintiff the claim shall have to be filed only by way of a suit instituted in a Civil Court. (iii) if the proceedings are initiated by such co-owner landlords, one or more of whom belong to section 23-J category while some others are those not falling within the definition of 'landlord' under section 23-J and the requirement pleaded provides a cause of action collectively to all the landlords arrayed as plaintiffs or applicants, the choice of forum lies with the landlords. They may file an application before R.C.A. Under Chapter III-A or may file a civil suit in a Civil Court under section 12 of the Act; in either case the proceedings would be competent and maintainable." 9. They may file an application before R.C.A. Under Chapter III-A or may file a civil suit in a Civil Court under section 12 of the Act; in either case the proceedings would be competent and maintainable." 9. True it is that the need shown by the appellant was for the major son who was also entitled to claim himself as a landlord and a composite suit for bona fide need as also on other grounds as mentioned in section 12(1) of the Act could have been filed jointly by the appellant along with other landlords, but if the appellant was willing to file the suit as specified landlady, she was required to go to the Rent Controlling Authority only on the ground of bona fide need under section 12(1)(f) of the Act. The said need as is specifically mentioned under section 23-A of the Act was to be looked into by the Rent Controlling Authority and not by the Civil Court. But, the suit was not filed by the appellant as a specified landlady only on the grounds of bona fide need. The suit was a composite one on the different grounds which are not covered under section 23-A of the Act. It is the choice of the litigant to choose the forum and unless there is complete and specific bar created by law, the right to choose the forum cannot be restricted. This view has been expressed by the Full Bench of this Court in the case of Ashok Kumar Shiv Prasad Verma v. Baboolal, 1998(1) MPLJ (F.B.) 461 where dealing with such a situation in paragraph 5 of the report, the entire consideration is done which reads thus:-- "5. We have bestowed our best of consideration to the interpretation of section 11-A and we are of the opinion that the provision of Chapter III will not apply to Chapter III-A and not vice-versa. The learned Single Judge has only read it to mean that if the landlords defined in section 23-J seek a remedy of eviction of the tenant then they have only one forum and they cannot take the benefit of going to Civil Court along with other ground, with great respect, is not correct. The learned Single Judge has only read it to mean that if the landlords defined in section 23-J seek a remedy of eviction of the tenant then they have only one forum and they cannot take the benefit of going to Civil Court along with other ground, with great respect, is not correct. In fact, this is not the intention of section 11-A. If any landlord wants to get a benefit of summary proceedings of the tenant, who is a landlord defined in section 23-J, then he can immediately invoke the remedy before the Rent Controlling Authority. But, if he does not want to invoke the benefit of that summary remedy then there is no prohibition for him to go to a Civil Court and seek remedy of eviction of the tenant on the basis of reasonable bona fide requirement or on other grounds mentioned in section 12 of the Act. Section 45 does not prohibit the 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 insofar as it relates to fixation of standard rent in relation to any accommodation to which this Act applies or to any other matter which the Rent Controlling Authority is empowered by or under this Act to decide and no injunction in respect of any action taken or to be taken by the Rent Controlling Authority shall be granted. A close reading of this section means that so far as the matter relates to fixation of rent in relation to the accommodation concerned, the Rent Controlling Authority will have the jurisdiction to decide the matter and for any other matter, which the Rent Controlling Authority is empowered by or under this Act to decide, no injunction in respect of any action taken or to be taken by the Rent Controlling Authority shall be granted by any Civil Court or other authority. A simple meaning of this is that if any matter in which suit has been filed by the landlord as defined in section 23-J, for eviction of the tenant on a reasonable bona fide requirement, then to the extent, the jurisdiction of the Civil Court is barred. A simple meaning of this is that if any matter in which suit has been filed by the landlord as defined in section 23-J, for eviction of the tenant on a reasonable bona fide 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 Court raising a ground of reasonable bona fide requirement or on other grounds mentioned in section 12 of the Act, then the Civil Court can decide the matter and there is no prohibition. If the landlord defined in section 23-J files a simpliciter suit on the ground of reasonable bona fide necessity before the Rent Controlling Authority then in that case, the Civil Court will have no jurisdiction whatsoever. But to interpret section 45to mean that the landlord defined in section 23-J will have no right to approach the Civil Court for eviction of the tenant on the ground of a reasonable bona fide requirement, will not be a correct interpretation of section 45. In fact, as already mentioned above, section11A is a restrictive provision that Chapter III will not be applicable to the landlords defined in section 23-J under Chapter III-A. But, if the landlord does not want to avail the benefit of Chapter III-A and wants to litigate the matter before the Civil Court as ordinary landlord then section 45 of the Act will not come in his way. In fact, the benefit has been specially provided to the landlord defined in section 23-J whereby he does not cease to be ordinary landlord. The landlord can avail the expeditious remedy under Chapter III-A and if they do not want to avail the remedy under Chapter III-A and wants to litigate as an ordinary citizen, then it is their choice and they cannot be restricted to one particular forum. Alternative forum has been created for the benefit of these persons and that does not exclude the ordinary civil forum, if they do not want to avail the benefit of a privilege which has been created for them under the Act. Therefore, when Chapter III-A is specially inserted for the benefit of the landlords defined in section 23-J and to read it that excludes other civil forum with reference to section 45 will be frustrating the very purpose of the Act. Therefore, when Chapter III-A is specially inserted for the benefit of the landlords defined in section 23-J and to read it that excludes other civil forum with reference to section 45 will be frustrating the very purpose of the Act. Neither the Full Bench in the case of Paraschand (supra) nor the Division Bench in the case of Bernard (supra) has anywhere laid down that the jurisdiction of the Civil Court is barred for the landlords defined in section 23-J of the Act. The view taken by the learned Single Judge that since a special forum has been created under Chapter III-A; therefore, reading with section 45, the landlords defined in section 23-J has to resort to that particular forum and they cannot have a remedy before the Civil Court, with great respect, it is not the correct view taken by the learned Single Judge." 10. Yet, another aspect is required to be looked into. In the case of Sulochana v. Rajinder Singh (supra), the Apex Court was dealing with almost a similar matter where the bar was sought to be created as prescribed under section 45 of the Act and the second appeal filed before this Court was allowed. The Apex Court exhaustively dealing with such provisions, came to the conclusion that where eviction of a tenant is sought on various grounds enumerated in section 12(1) of the Act including a ground of bona fide need, even a specified landlord is required to approach the Civil Court as for the other reliefs decree cannot be granted by the Rent Controlling Authority under the provisions of section 23-A of the Act. The only distinction in the present case and in the said case was that there a decree for arrears of rent was also granted. However, the issue has been looked into widely by the Apex Court and it has been held that the parameters prescribed by the Apex Court in the case of Dhannalal (supra) were to be understood in light of the effective findings. If a composite suit was maintainable and ultimately except for grant of bona fide need, the Civil Court reached to the conclusion that no decree is required to be passed, it would be futile to ask the landlord who is not claiming himself a specified landlord, to go to the Rent Controlling Authority asking for such a relief. If a composite suit was maintainable and ultimately except for grant of bona fide need, the Civil Court reached to the conclusion that no decree is required to be passed, it would be futile to ask the landlord who is not claiming himself a specified landlord, to go to the Rent Controlling Authority asking for such a relief. If in such circumstances, a relief is granted by the Civil Court, it cannot be said to be bad in law. If a suit was filed in such a manner, it was rightly treated to be within the jurisdiction of Civil Court. The provisions of section 45 of the Act as explained hereinabove also do not confer any specific power on the Rent Controlling Authority only as it is open to the landlord to choose the forum. This being so, if after holding that a bona fide need is made out by the appellant for eviction of her tenant from the suit accommodation and if a decree is granted to this effect by the Civil Court, in a composite suit where the other grounds of eviction are not made out, it cannot be said that such a decree was beyond the jurisdiction of the Civil Court. In view of the aforesaid, this appeal is allowed with costs. The judgment and decree of the first Appellate Court is hereby set aside and the judgment and decree of the Civil Court is hereby affirmed. The appellant will get the costs of this appeal from respondents.