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2013 DIGILAW 206 (CHH)

SANJAY KUMAR MISHRA v. UMESH NARAYAN MISHRA

2013-07-08

T.P.Sharma

body2013
JUDGMENT 1. By this second appeal under Section 32 of the C.G. Accommodation Control Act, 1961 (for short 'the Act of 1961') the appellant has challenged the legality and propriety of the order dated 6.3.2013 passed by the First Additional District Judge, Bilaspur, in Misc. Civil Appeal No. 1/12, reversing the order dated 10.2.2012 passed by the Rent Controlling Authority (for short 'RCA'), Bilaspur, in Case No.01/A-90(6)/2011-12, whereby the RCA has directed the respondent to open the lock and chain of accommodation of the appellant locked by the respondent. 2. As per claim of the appellant/tenant, accommodation was locked by chain and lock by the respondent/landlord and has withheld the essential service of the appellant. On the aforesaid ground the appellant has filed the application before the RCA. After providing opportunity of hearing to the parties, the RCA has directed the respondent for opening the chain and lock and finally it was opened. Same was challenged before the First Additional District Judge, Bilaspur in Misc. Appeal by the respondent. After providing opportunity of hearing to the parties, the Court below has allowed the appeal and quashed the order passed by the RCA on the ground that closing of door by lock is not withholding the-essential service. 3. Learned Senior Advocate for the respondent submits that again shop has been locked by lock and chain by the RCA and also submits that in absence of landlord-tenant relationship, order of the RCA was without jurisdiction. 4. Second appeal under Section 32 of the Act of 1961 can be heard on the following grounds that (1) "whether the decision in Misc. Appeal is contrary to law or usage having the force of law", (2) "the decision has failed to determine some material issue of law," (3) there has been a substantial error or defect in the procedure. 5. Appeal is contrary to law or usage having the force of law", (2) "the decision has failed to determine some material issue of law," (3) there has been a substantial error or defect in the procedure. 5. As submitted by learned Senior Advocate for the respondent that the Act of 1961 will not apply and the appellant is not tenant, which has been decided contrary by both the Courts below and as submitted by learned Senior Advocate for the appellant that the Court below has illegally held that closing of door is not covered under Section 38 of the Act of 1961 i.e. withholding the essential service, the present appeal is required to be considered under Section 32 of the Act of 1961 on the question whether the order of the first appellate Court is contrary to law and whether the RCA is not having jurisdiction to try and decide the dispute. 6. I have heard learned counsel for the parties, perused the order impugned and other documents. 7. Learned Senior Advocate for the appellant submits that tenancy was created vide agreement dated 11.2.2002 and eviction notice was served by the respondent on 27.12.2011, which clearly reveals that the present appellant is tenant and the respondent is landlord, which by itself is sufficient to establish the fact that relationship of landlord and tenant is still in existence. Learned Senior Advocate further submits that the only question remains for consideration is whether closing of door would be withholding the essential service under Section 38 of the Act of 1961. Learned Senior Advocate also submits that closing of door by chain and lock is withholding the right to approach of the tenant and same would be squarely covered under Section 38 (1) of the Act of 1961. 8. Learned counsel for the appellant placed reliance in the matters of Bhawarlal Vs. Shyamji : 1993 MPWN 249, Ghasiram Kamlapat Vs. Dhanraj Parpeiomal, 1968 MPLJ 271 and Sudesh Mehta Vs. Bhagchand and another, 1987 MPLJ 814 in which the High Court of Madhya Pradesh has held that closing of door or closing of door by lock and chain is withholding the essential service i.e. right of way of the tenant. 9. On the other hand, learned Senior Advocate for the respondent opposes the appeal and submits that order passed by the appellate Court has been complied with and nothing remains in the present case. 9. On the other hand, learned Senior Advocate for the respondent opposes the appeal and submits that order passed by the appellate Court has been complied with and nothing remains in the present case. Learned Senior Advocate further submits that accommodation was given on rent in the year 2002 for eleven months by an agreement. In absence of any proof of existence of such landlord-tenant relationship and proof of payment of rent, the appellant is not tenant, but his position is simply "tenant at sufferance", only he would not be liable for criminal trespass and the appellant is not tenant under the Act of 1961. Learned Senior Advocate also submits that in absence of any statutory relationship of landlord and tenant, the status of the appellant is "tenant at sufferance" and not the tenant, he is bound to put the respondent in possession in terms of Section 108 (A) (q) of the Act of 1882. Learned Senior Advocate also submits that C.G. Accommodation Control Act, 1961 especially Section 38 has no application in the present appeal. 10. Undisputedly, as per Annexure A/3, letter/notice issued by the respondent to the appellant has shown himself as a landlord and the appellant as a tenant in the accommodation in dispute. Nothing has been shown by the respondent to prove that that tenancy has been terminated or came to an end. Closing of door by putting chain & lock and denying his entry in the accommodation by the respondent is not in dispute in the present case. 11. In the matters of Bhawarlal : 1993 MPWN 249, Ghasiram Kamlapat, 1968 MPLJ 271 and Sudesh Mehta, 1987 MPLJ 814 , High Court of Madhya Pradesh has held that closing of accommodation by chain and lock or any hindrance in approaching the accommodation is withholding the essential service. 12. In case of closing of accommodation/door by chain and lock, the tenant would not be in a position to enjoy the tenancy. Denying the entry in the accommodation by making obstructions of any kind in the entry, door or approach road would squarely cover under Section 38(1) of the Act of 1961 as withholding of essential service. 12. In case of closing of accommodation/door by chain and lock, the tenant would not be in a position to enjoy the tenancy. Denying the entry in the accommodation by making obstructions of any kind in the entry, door or approach road would squarely cover under Section 38(1) of the Act of 1961 as withholding of essential service. Therefore, by passing the order the RCA has not committed any illegality, but by reversing the order by holding that locking the door of accommodation is not withholding the essential service, the first appellate Court has committed illegality and order of the first appellate Court is contrary to law. Both the Courts below were having jurisdiction to try and decide the dispute. 13. Consequently, the appeal deserves to be allowed and is hereby allowed. Order impugned is hereby quashed and order passed by the RCA is hereby maintained. The RCA is required to recall its proceeding for locking the accommodation and shall remove the obstruction and clear the withholding of essential service. No order as to costs. Appeal Allowed.