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2017 DIGILAW 541 (MP)

VINEETA AGARWAL v. MEERA DEVI AHUJA

2017-04-21

ANJULI PALO

body2017
ORDER : Anjuli Palo, J. This civil revision has been filed under section 115 of Code of Civil Procedure by the tenant, against the judgment and decree dated 14-12-2016, passed by the Rent Control Authority, Raghuraj Nagar, Satna (M.P.) in Case No. 14-A/90/16-17, whereby the Rent Controlling Authority has allowed the application of the respondent under section 23-C and 23-D of the Rent Control Act, 1981 and directed the applicant to evict the disputed premises. 2. It is not in dispute that the applicant is the tenant for commercial purpose at the rate of Rs.12,500/- per month and the respondent is the owner of the suit premises. The respondent is a widow and falls within the category under section 23-J of M.P. Accommodation Control Act. The respondent filed an application under section 23-A and 23-B of M.P. Accommodation Control Act, 1961 before the Rent Controlling Authority for eviction of the appellant/tenant on the ground of bona fide need of the suit premises, for her daughter Sapnato start her business. 3. The applicant has filed this revision on the grounds that the learned Rent Control Authority without affording opportunity of hearing has decided the case. Notices were never served on the applicant as per the mandatory prescribed format. It does not mention that the applicant is required to obtain leave of the Rent Control Authority, to contest the application for eviction on the ground and the default thereof within a period of 15 days, failing which the landlady would be entitled for an order of eviction. Hence, it is liable to be set aside. 4. Contentions of the applicant is that, the respondent possesses four other premises for business in the city of Patna. She does not bona fidely require suit premises for business purpose. The respondent already rented out one shop to the other tenant on 12-3-2016. The appellant regularly paid the rent through Demand Draft, which was refused by the respondent. 5. The notice under prescribed format was never served on the appellant. As per record, notice was issued on 11-12-2015 and thereafter, the appellant got information about the pendency of the case before the Rent Control Authority. She immediately appeared in the Court. She enquired from the Court and found that a case was filed by the respondent under section 23-A of the Act, 1961. As per record, notice was issued on 11-12-2015 and thereafter, the appellant got information about the pendency of the case before the Rent Control Authority. She immediately appeared in the Court. She enquired from the Court and found that a case was filed by the respondent under section 23-A of the Act, 1961. At that moment, she immediately contacted her counsel who has filed a memo of appearance on 28-3-2016, and thereafter filed a Vakalatnama on 11-4-2016 and subsequently a reply and an application under section 23-C was filed for granting leave for defending the case. However, it is stated that thereafter an 'application under Order 7, Rule 11 of the Civil Procedure Code was filed before the Court for dismissing the proceedings as barred by law. 6. The respondent/owner and landlord has not filed any reply or affidavit denying the allegation made in the reply. 7. The summons (Annexure A/7) clearly indicates that the tenant must appear within 15 days from the service and obtain required leave to defend. Summons (Annexure A/7) is in proper format according to section 23-C of the M.P. Accommodation Control Act. 8. A perusal of sub-section (1) of section 23-C of the Act makes it clear that the condition of service of summons upon the tenant in the form specified in the second Schedule is a sine qua non for filing an application to seek permission to contest the applications for eviction within 15 days from the date of such service of summons. As has been held in the case of Uttam Rajak v. Smt. Shanti Bai Chouksey, AIR 2007 C.G. 13. 9. In the case of Devidayal Sales Pvt. Ltd. v. Dr. Rameshchandra, 1994 M.P.L.J. 899, wherein it was held as under :- "(I) In our country, men are more and mansions less. This is why eviction matters became highly controversial and face hot contest. To combat this position at least for certain specified categories of the landlords, the special forum and procedure for trial have been introduced by the Amending Act 27 of 1983. (II) The object is two-fold. One futile contest may be eliminated. This is intended to be controlled by section 23-C of the M.P. Accommodation Control Act requiring the tenant to obtain leave to contest on appropriate grounds. Two verdict may be expeditious. (II) The object is two-fold. One futile contest may be eliminated. This is intended to be controlled by section 23-C of the M.P. Accommodation Control Act requiring the tenant to obtain leave to contest on appropriate grounds. Two verdict may be expeditious. This is sought to be achieved by section 23-D of the Act, which demands (a) that the RCA shall commence the hearing as early as practicable and decide the same as far as may be, within six months and (b) that the RCA shall as far as possible proceed with the hearing of the application from day to day" 10. A tenant is required to make such an application in strict compliance of the provision of sub-section (1). It should be filed within 15 days of the date of service of summons on him/her and should disclose the fact which would raise a trivial issue under section 23-A of the M. P. Accommodation Control Act, and application for leave to defend has been filed by the applicant after two months from 11-4-2016. Then again she was absent. No application for condonation of delay has been filed by the applicant. The proviso to sub-section (1) confers powers on the Rent Controlling Authority to condone the delay made by a tenant in entering into appearance or in applying for leave to defend, provided there was sufficient cause for the same. Although, nothing specific is mentioned in the proviso. What would constitute sufficient cause, the Rent Controlling Authority shall be guided by the provisions of section 5 of the Limitation Act and the cases decided thereunder. 11. In case of S.C. Pande v. Commander Bhagat, 1985 MPRCJ (N) 46, it was held that if no affidavit is filed within 15 days. Delay in filing affidavit is not explained, delay cannot be condoned. 11. In case of S.C. Pande v. Commander Bhagat, 1985 MPRCJ (N) 46, it was held that if no affidavit is filed within 15 days. Delay in filing affidavit is not explained, delay cannot be condoned. The section provides that in default of the appearance of the tenant in pursuance of the summons or his obtaining such leave, or where the leave is refused, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground set out in section 23-A. On a combined reading of section 23-A with section 23-C the legal position that emerges is that on a proper application being made in the prescribed manner which is required to be supported by an affidavit, unless the tenant obtains leave to defend as contemplated by this section the tenant is deemed to have admitted all the averments made in the petition by the landlord. The effect of these provisions is that the Controller would act on the admission of the tenant and there is no better proof of fact as admission. Ordinarily facts which are admitted need not be proved. 12. In case of H.D. Soni v. Ramesh, 1986 MPRCJ SN 91, it is held that-leave to defend cannot be granted when the same is applied after the prescribed period and there is no application for condoning the delay. Without condoning this delay, the application cannot be entertained. Therefore, the respondent has legal right to evict her with the help of provision under section 23-A and 23-B of the M. P. Accommodation Control Act. 13. This Court has not found any illegality, irregularity or perversity in the impugned order passed by the Rent Controlling Authority. Hence, this revision stands dismissed.