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2017 DIGILAW 970 (MP)

Shyamlal Vyas v. Inderchand

2017-09-05

VIVEK AGARWAL

body2017
ORDER 1. This civil revision has been filed under section 23-E of the M.P. Accommodation Control Act, 1961 (hereinafter for short referred to as “Act”) read with section 115 of the Code of Civil Procedure, 1908 against order dated 23.6.2010, 21.5.2013, 7.6.2013 and 19.6.2013 passed by the learned Rent Control Authority, Gwalior in Case No.24/95-96×90-7. Vide order dated 23.6.2010, the case was fixed for evidence of the applicant. Vide order dated 21.5.2013, the application under section 151, CPC filed on 8.7.2010 to the effect that direction of the Rent Control Authority to the lead evidence is defective and it is submitted that in terms of the provisions contained in section 23-D (3) of the Act, the direction to lead evidence is faulty needs to be recalled, has been rejected. 2. As far as section 115 of CPC is concerned, an order in revision can be challenged within the limitation of 90 days from the date of decree or order sought to be revised. This is in terms of Article 131 of the Limitation Act. 3. In the present case, the applicant has challenged order dated 23.6.2010, but no reason has been assigned as to why this order dated 23.6.2010 was not challenged earlier. It is only mentioned that since order dated 23.6.2010 merged in order dated 21.5.2013, therefore order dated 23.6.2010 can be challenged. It is apparent from the revision petition so also order dated 21.5.2013 that order dated 23.6.2010 has not merged in order dated 21.5.2013, therefore, revision against order dated 23.6.2010 is not maintainable. As far as order dated 7.6.2013 is concerned, time was granted to the applicant's counsel to lead evidence and the same was the position on 19.6.2013. There is stay on the proceedings of Rent Control Authority since 26.8.2013. 4. Applicant's main contention is that in terms of the provisions contained in section 23-D (3) of the Act, requirement of the landlord shall be presumed to be bona fide. In fact, section 23-D (3) of the Act reads as under :- “(3) In respect of an application by a landlord it shall be presumed, unless the contrary is proved, the requirement by the landlord with reference to clause (a) or clause (b), as the case may be of section 23-A is bona fide.” 5. In fact, section 23-D (3) of the Act reads as under :- “(3) In respect of an application by a landlord it shall be presumed, unless the contrary is proved, the requirement by the landlord with reference to clause (a) or clause (b), as the case may be of section 23-A is bona fide.” 5. The presumption under section 23-D (3) of the Act is in respect to the bona fide requirement, but it does not shift the onus to lead the evidence in respect of other aspects of the claim and, therefore, the landlord could not have sought exemption from leading his own evidence. Though there is a presumption, but such presumption is rebuttable and, therefore after grant of leave to defend, Rent Control Authority has to proceed to decide the bona fide need of the landlord and the grounds on which leave to defend is granted. Presumption under section 23-D (3) of the Act is limited to bona fide requirement and landlord has to prove all other ingredients of the provisions under sections 23-A or 23-B of the Act. 6. In section 23-E of the Act, it is provided that the High Court shall, as far as may be, exercise the same powers and follow the same procedure as it does for disposal of a revision under section 115 of the Code of Civil Procedure,1908. 7. Section 115 of CPC provides that the High Court shall not, under this section, vary or reverse any order made or any order deciding an issue, in the course of a suit or other proceedings, except where – (a) the order, if it has been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings; or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. 8. 8. In the present case, as has been discussed by the Rent Control Authority, there is a dispute in regard to the title of the landlord-present petitioner and there is no unrebuttable presumption under section 23-D(3) of the Act as to the ownership of the premises and, therefore, on this ground and also the fact that there is no provision to review the earlier order, as was passed by the Rent Control Authority on 23.6.2010, the application under section 151, CPC virtually seeking review and recall of the order dated 23.6.2010 being not maintainable has been rightly dismissed. 9. Applicant-plaintiff is required to prove his own case and cannot stand on the weaknesses of the respondents. Presuming that the respondents refuse to give any evidence, then also the applicant-plaintiff will have to prove his own case and, therefore, on this ground also the applicant-plaintiff is required to enter into the witness-box and prove his case. 10. This Court is of the opinion that the civil revision is not maintainable inasmuch as the Rent Control Authority has acted bona fide and also has exercised its jurisdiction vested in it properly while deciding the applicant's application under section 151, CPC. Thus, the revision fails and is hereby dismissed.