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Madhya Pradesh High Court · body

2021 DIGILAW 175 (MP)

Iqran Khan v. Lalitabai

2021-02-18

VIVEK RUSIA

body2021
ORDER : Vivek Rusia, J. 1. Applicant/tenant has filed the present revision under section 23E of the M.P Accommodation Control Act, 1961 (herein after referred to as 'the Act of 1961') against the order dated 17.08.2020 passed by Rent Controlling Authority (RCA), Badwani in eviction case No. 0003/A-90(7)/2019-20. 2. Respondent filed a suit for ejectment and recovery of arrears of rent under section 23-A of the Act of 1961 on 20.09.2019 against the applicant. According to the respondents, she is the owner, occupier and title holder of shop No. 2, 3 & 4 situated at the bus stand, Badwani (hereinafter referred to as 'the suit shops'), which were given to the applicant on the terms of the agreement dated 01.09.2019 at the total rent of Rs. 12,000/- per month payable from the dates 1 to 5 per month. The applicant paid the rent regularly for 3 months but from January 2019, he has stopped paying the rent. He is causing a nuisance in her restaurant upon demanding the rent. When the respondent despite repeatedly demanded has failed to pay the rent, therefore, notice dated 23.05.2019 was given to him calling upon him to pay the rent and when he did not pay the rent the cause of action arose for filing the suit. The respondents filed the suit on bonafide need of her two sons who were in need to start business in the city. 3. The Rent Controlling Authority issued the notice to the present applicant. The applicant appeared on 22.10.2019 through his counsel. On 30.10.2019 the counsel for the applicant was provided all the documents and he sought time to file the reply. After repeated adjournments, he filed the reply on 30.11.2019. One Ajay Singh s/o Manohar Singh filed an objection in the proceeding before the RCA on 07.10.2019 about the maintainability of the present proceeding. The respondent filed an application under section 13(6) of the Act of 1961 on 28.01.2020. The objection taken by Ajay Singh about intervention in the pending suit was considered and rejected on 17.02.2020 and the case was fixed for argument on the application under section 13(6). Since the applicant did not deposit the arrears of rent, therefore, vide order dated 29.02.2020 he was proceeded ex-parte and the case was fixed for respondent's evidence. On 16.03.2020 again the present applicant submitted an application for setting aside the ex-parte proceedings. Since the applicant did not deposit the arrears of rent, therefore, vide order dated 29.02.2020 he was proceeded ex-parte and the case was fixed for respondent's evidence. On 16.03.2020 again the present applicant submitted an application for setting aside the ex-parte proceedings. The learned authority has directed him to deposit the rent. In support of the case, the respondent examined herself as PW/1, Akash Thakur as PW/2 and Azhar Hussain as PW/3 and applicant did not give any evidence 4. After appreciating the evidence that came on record, learned RCA has decreed the suit in favour of the respondent by directing the applicant to vacate the possession of the suit shop within 2 months, hence the present revision before this Court. I have heard learned counsel for the parties and perused the record. 5. The applicant has assailed the impugned judgment dated 17.08.2020 on the ground that the respondent is not the owner of the suit shop. A title dispute is going on between the respondent and, the first wife of Manohar Singh Thakur i.e. Smt. Sumanbai before IIIrd ADJ, Badwani. In the said suit vide order dated 19.08.2019 an injunction has been granted in respect of all the suit properties left by late Manohar Singh Thakur in which the said suit shops are also there. The Will in favour of the respondent is also under challenge in the said suit, therefore, until and unless the issue of ownership is decided in the pending suit the present suit for eviction is not maintainable at the instance of the respondent. It is further submitted by the learned counsel that she does not fall under the special category of the landlord under 23-J of the Act of 1961 because she is not a widow of the actual owner of the suit shop i.e. Manohar Singh Thakur. During the lifetime of the first wife Smt. Sumanbai, Manoharsingh Thakur was not legally entitled to perform a second marriage with the respondent, therefore, she cannot claim herself to be the widow of late Manohar Singh Thakur after his death. The so-called marriage of respondent with Manoharsingh Thakur is void because of sections 5 & 11 of the Hindu Marriage Act. It is further submitted by the learned counsel that the learned authority has wrongly proceeded ex-parte against the applicant because he has failed to deposit the rent. The so-called marriage of respondent with Manoharsingh Thakur is void because of sections 5 & 11 of the Hindu Marriage Act. It is further submitted by the learned counsel that the learned authority has wrongly proceeded ex-parte against the applicant because he has failed to deposit the rent. Since the ownership of the property is under dispute, therefore, the present applicant cannot be held responsible for non-deposit of the rent until the issue of ownership is decided by the civil Court, hence the impugned order is liable to be set aside. 6. Ms. Sushma Sharma, learned counsel appearing on behalf of the respondent submitted that the applicant entered into a tenancy with the rent agreement with the respondent, therefore, he paid the rent for 3 months thereafter dishonesty came in his mind and he stopped paying rent by creating a nuisance. He is estopped from challenging the title of the respondent. Even otherwise, he has no locus to enter into a dispute between the respondent and Sumanbai. There is a registered Will in favour of the respondent executed by her husband late Manohar Singh Thakur and after his death on 10.05.2017 the present respondent became the owner and thereafter she executed a rent deed in favour of the present applicant. After one year of the tenancy, she filed the suit on 20.09.2019 which is maintainable. It is further submitted by the learned counsel that Late Manohar Singh Thakur has executed a Will in her favour recognising her as his wife, therefore, the applicant has no right to challenge the status of the present respondent. Even Sumanbai in the suit has arrayed the respondent as the wife of late Manohar Singh Thakur. The respondent is having 2 sons viz. Akash and Anil and one daughter viz. Pinki. It is further submitted by the learned counsel that the applicant was in default of payment of rent, therefore, his right of defence was rightly been struck down but he was never proceeded ex-parte by learned RCA. He suo-moto did not appear before the authority at the time of the final hearing. Even after filing this revision, he has not deposited the rent, hence the revision is liable to be dismissed. 7. The respondents invoked the jurisdiction of the RCA under section 23A being a widow of late Manohar Singh Thakur. He suo-moto did not appear before the authority at the time of the final hearing. Even after filing this revision, he has not deposited the rent, hence the revision is liable to be dismissed. 7. The respondents invoked the jurisdiction of the RCA under section 23A being a widow of late Manohar Singh Thakur. The respondent entered into a rent agreement with the present applicant for 3 shops at the rate of Rs. 12,000/- per month which the applicant is not disputing. In the reply to the legal notice he denied execution of the agreement and the payment of rent but he has not described in what capacity he is in possession in the suit shops. The respondent gave her affidavit and examined two more witnesses about the ownership, execution of rent agreement and non-payment of rent but they were not cross-examined by the present applicant, therefore, the evidence remained unrebutted. In defence the applicant did not produce any evidence. The respondent produced the Will of Manohar Singh Thakur in which apart from other properties the suit shops were given to the present respondent in presence of two witnesses. The rent agreement with the present applicant is a registered agreement in which his signature is very much there, therefore, he cannot deny the execution of the agreement and payment of rent without any plausible defence. He has caused the nuisance by denying the title of the present respondent. 8. Admittedly, after receipt of notice and during the pendency of proceeding before the RCA and before this Court the applicant has not deposited the arrears of the rent. There are arrears of rent due upon him since January, 2019, therefore, the eviction decree is not liable to be interfered with. So far as the ex-parte proceeding against the applicant is concerned, he was duly served by the respondent. He appeared through his counsel, filed the written statement but under the provision of section 13(6) he was proceeded ex-parte due to non-deposit of rent, therefore, there is no error of law by the authority in proceeding ex-parte against him. 9. Applicant has also assailed the impugned decree on the ground that he was served with a notice in a form which is prescribed for revenue matter but there is a special notice prescribed under the Act of 1961 but he was not served by the said notice which vitiates the entire proceedings. 9. Applicant has also assailed the impugned decree on the ground that he was served with a notice in a form which is prescribed for revenue matter but there is a special notice prescribed under the Act of 1961 but he was not served by the said notice which vitiates the entire proceedings. The applicant appeared before the authority and participated in the proceeding and he was given the opportunity to file a reply. He did not raise any objection about the format of notice, therefore, non issuing the notice in the prescribed format would not vitiate the entire proceedings. The applicant is estopped from raising this issue after inviting a finding against him on merit. So far the bona fide need of the respondent is concerned, she has specifically pleaded that the suit shops are required for her bona fide need to start the business of her son. She is aged about 62 years and wants to settle her son in the business and she has no suitable accommodation in the city for the business. Even that evidence remained unrebutted. The proceeding under section 23-J is special and speedy in order to protect the right of the special category of tenants, hence I do not find any ground to interfere with the impugned order. The revision petition is dismissed. No order as to cost.