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Madhya Pradesh High Court · body

2013 DIGILAW 304 (MP)

Bano Bi v. Mst. Sikka Begum

2013-03-06

A.K.Shrivastava

body2013
ORDER 1. Feeling aggrieved by the order dated 7.7.2006, passed by learned Rent Controlling Authority in Case No.1-A/90(2) year 2003-2004 whereby the application filed under section 23A of the M.P. Accommodation Control Act, 1961 (in short the Act of 1961) filed on behalf of landlord-plaintiffs has been decreed, defendant-applicant has come up in this revision under section 23E of the Act of 1961. 2. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal. Suffice it to say that on the relationship of landlord and tenant, the plaintiffs filed a suit for eviction against the present applicant. 3. According to the plaintiffs, the suit accommodation is bonafidely required by them for the residence of the family members. In para 5 of the eviction application, it has been specifically pleaded that plaintiff No.1 is having four adult sons and for their residence, there is no reasonable suitable residential accommodation in the township of Hoshangabad. 4. The defendant-applicant after leave to defend was granted to him filed written statement and denied the averments of bona fide need. The case of defendant-applicant is that by executing a document of agreement of sale on 28.2.2001, the suit house in which she is residing has been agreed to be sold by the plaintiffs and hence she is not a tenant, but under section 53E of the Transfer of Property Act she is possessing the suit property. An application under section 10 read with section 151 CPC was submitted by the tenant before the Rent Controlling Authority stating therein that the execution application be stayed because the defendant has filed a suit for specific performance of contract in the Court of First Civil Judge Class I, Hoshangabad, which has been registered as Civil Suit 37-A/04 and the same has been filed earlier to the filing of the eviction application. The suit for specific performance of contract was filed on 15.5.2003 while the eviction application has been filed later on 23.9.2003 and, therefore, the eviction decree is bad in law. 5. The Rent Controlling Authority after recording the evidence of the parties passed the eviction decree. 6. In this manner, this revision application has been filed by the tenant-applicant. 7. The suit for specific performance of contract was filed on 15.5.2003 while the eviction application has been filed later on 23.9.2003 and, therefore, the eviction decree is bad in law. 5. The Rent Controlling Authority after recording the evidence of the parties passed the eviction decree. 6. In this manner, this revision application has been filed by the tenant-applicant. 7. The contention of Shri Shukla, learned counsel for the applicant is that looking to the pleadings and the evidence which has been adduced by the plaintiffs, the alleged bona fide need of family members is not proved. The next contention of learned counsel is that despite there is pleading in the written statement that plaintiffs have entered into an agreement with defendant to sell the suit house in which she residing as tenant and thereafter upon filing application under section 10 CPC praying to stay the eviction application till the decision of the suit of specific performance, the same has been rejected by learned Rent Controlling Authority in contravention to the law. Thus, it has been prayed that by allowing this revision application, the impugned order be set aside and the eviction application filed on behalf of respondents be dismissed. 8. On the other hand, Shri Kunal Dubey, learned counsel appearing for the respondents argued in support of the impugned order and has contended that cogent reasons have been assigned by learned Rent Controlling Authority in decreeing the eviction application and, therefore, no interference is needed and hence prayed that this revision application be dismissed. 9. Having heard the learned counsel for the parties, I am of the view that this revision application deserves to the dismissed. 10. On bare perusal of the pleadings of plaintiffs in regard to bona fide need, this Court finds that in specific words, the plaintiffs have pleaded in para 5 of the application that the suit house is bonafidely required by them. Further it has been pleaded that first applicant namely, Mst. Sikka Begum (respondent No.1 here in this revision) is having four adult sons and for their residence, there is no reasonable suitable residential accommodation in the township of Hoshangabad for them, thus, I am of the view that pleadings of bona fide requirement is in consonance with law and it cannot be said that sufficient pleading of plaintiffs is lacking. Sikka Begum (respondent No.1 here in this revision) is having four adult sons and for their residence, there is no reasonable suitable residential accommodation in the township of Hoshangabad for them, thus, I am of the view that pleadings of bona fide requirement is in consonance with law and it cannot be said that sufficient pleading of plaintiffs is lacking. The plaintiffs were examined and in their testimony, they have categorically stated that the suit accommodation is required by them for their residence and for the residence of four adult sons of plaintiff No.1 and they do not have reasonable suitable vacant residential accommodation in the vicinity of Hoshangabad. 11. The defendant-applicant also examined herself and has only deposed that the house in which the plaintiffs and their family members are residing consists of several rooms, but the details of those rooms have not been disclosed by her. The defendant has not at all stated in her deposition that apart from the suit property, whether there is any other reasonable vacant suitable residential accommodation is available to the plaintiffs. The learned Rent Controlling Authority by paying heed to the evidence on record and after marshalling it had arrived at a conclusion that there are as many as ten members in the family of plaintiffs and they are residing only in two rooms and there is one kitchen and thus they are facing huge difficulty and hence the need of plaintiffs is bona fide. According to me, the finding so arrived at by the Rent Controlling Authority is based upon correct appreciation of evidence and this Court looking to the limited scope envisaged under section 23E of the Act of 1961, do not find any ground to hold that the requirement of plaintiffs is not bona fide. True the scope of section 23E of Act of 1961 conferring revisional jurisdiction upon this Court is wider to that of section 115 CPC, but still the case of bona fide requirement of plaintiffs is not coming within the clutches of the revisional jurisdiction conferred to this Court under section 23E(2) of the Act of 1961. Hence, this Court has no option but to affirm the finding of Rent Controlling Authority that the bona fide need of plaintiff has been proved. 12. Hence, this Court has no option but to affirm the finding of Rent Controlling Authority that the bona fide need of plaintiff has been proved. 12. So far as the argument made by Shri Shukla, learned counsel for the defendant-applicant that learned Rent Controlling Authority should have stayed the proceedings before it because the defendant-applicant has filed a suit for specific performance of contract, which was filed earlier to the filing of the eviction application is concerned, suffice it to say that a verdict has been given by Division Bench of this Court in Lekhraj Diddi v. Sardar Sawan Singh [ 1971 JLJ 545 ], wherein it has been specifically held by the Division Bench by elucidating the scope of section 10 CPC that if in earlier suit the relief relates only to the sale-deed and no relief has been claimed in respect of the alleged contract of tenancy and in the plaint, there is no reference to the contract of tenancy and all that is said is that interest “was to be paid in the guise of rent”, it was found by the Division Bench that the question whether or not there was a contract of tenancy is not directly and substantially in issue in the earlier suit and therefore in these circumstances section 10 of the Code has no application. According to me, the Division Bench decision of Lekhraj Diddi (supra), is applicable in the present case. That apart, in the present case, there is no sale-deed and there is only an alleged document of agreement of sale in favour of tenant. To me, by the document of agreement of sale, only right conferred in a person is to get the contract enforced and if possession is given in pursuance to the said agreement, he can protect his possession on the principles embodied under section 53A of T.P. Act and nothing more. Even if the right of the applicant is stretched upon to the last end, it cannot be said that she has become the owner of the suit property by virtue of said agreement of sale. Even if the right of the applicant is stretched upon to the last end, it cannot be said that she has become the owner of the suit property by virtue of said agreement of sale. There is another decision of this Court in Trivenidevi v. Vijay Mohan Bose [ 1976 JLJ 140 ], wherein also the applicability of section 10 CPC was taken into consideration in the like situation and this Court has held that where the previous suit is for the specific performance of the alleged contract of reconveyance and the subsequent suit was for eviction as a tenant, the trial of the subsequent suit cannot be stayed. The Division Bench decision of this Court in Lekhraj Diddi (supra), was relied upon in the decision of learned Single Bench of this Court in Trivenidevi (supra). The decision of Single Bench of this Court in Jumma v. Birja [ AIR 1988 M.P. 276 ], the earlier view of Single Bench in Trivenidevi (supra), was not taken into account. Apart from this, as I have held hereinabove that only right which defendant owns by virtue of agreement of sale is to file a suit for specific performance of contract and therefore it cannot be said that the matter, which is directly and substantially in issue in the suit for specific performance of contract is also directly and substantially in issue in the present eviction proceedings under section 23A of the Act of 1961. 13. Indeed that plaint, written statement and the issues which were framed in the suit for specific performance of contract are not in the record of Rent Controlling Authority and therefore this Court is not aware what are the pleadings and what were the issues which were framed and therefore in its absence it cannot be said that the issues which were framed in the suit of specific performance of contract are directly and substantially in issue in the proceedings of Rent Controlling Authority. Thus, I am of the view that application under section 10 CPC was rightly rejected by learned Rent Controlling Authority. 14. For the reasons stated hereinabove, I donot find any merit in the revision and the same is hereby dismissed with costs. Counsel fee Rs.2,000/ if pre-certified. 15. At this juncture, Shri Shukla, learned counsel for the applicant seeks some breathing time to vacate the suit premises. 14. For the reasons stated hereinabove, I donot find any merit in the revision and the same is hereby dismissed with costs. Counsel fee Rs.2,000/ if pre-certified. 15. At this juncture, Shri Shukla, learned counsel for the applicant seeks some breathing time to vacate the suit premises. Although this prayer has been vigorously opposed by Shri Kunal Dubey, learned counsel for the respondents, but looking to the facts and circumstances and paying heed to the period of tenancy, I am of the view that one year time should be granted to defendant-applicant to vacate the suit premises on the following terms and conditions : (1) the applicant-tenant shall vacate the suit premises on are before 31.3.2014; (2) she shall not create any third party interest or hand over the possession to any other person; (3) she shall deposit the entire rent before the Rent Controlling Authority due upon her and shall continue to deposit the monthly rent in terms of section 13 of the Act of 1961; (4) she shall also deposit the cost of Rent Controlling Authority as well as of this Court on or before 30.4.2013; (5) the cost and the entire rent, which shall be deposited by applicant, the plaintiffs-respondents shall be entitled to withdraw without furnishing any security; (6) an undertaking shall be given by the defendant-applicant in the Rent Controlling Authority on or before 30.4.2013 satisfying aforesaid conditions. However, it is made clear that in case any of the condition is violated by the applicant, the respondents shall be free to execute the decree even prior to 31.3.2014. .............