Madhya Pradesh High Court
Smt. Paramjeet Kaur Bamba vs Smt. Jasbir Kaur Wadhwa on 12 September, 2007
Equivalent citations: 2007(4)MPHT238
Author: S.A. Naqvi
Bench: S.A. Naqvi
JUDGMENT S.S. Jha, J.
1. This revision is referred to the larger bench by learned Single Judge by order dated 11.11.2006 to determine the following question:
Whether the application under section 23-C of the M.P. Accommodation Control Act, 1961, supported by an affidavit stating the grounds on which a tenant seeks to contest the application for eviction, on being granted, would itself serve the purpose of written statement and no opportunity of separate written statement in additional manner is contemplated in such a situation under Chapter III-A?
2. Question involved in this case is that after grant of leave whether defendant can be permitted to file written statement or application for grant of leave supported by the affidavit is sufficient and no further opportunity to file written statement should be granted?
3. Shri Rajendra Tiwari, Senior Advocate, appearing for the petitioner submitted that under Chapter III-A of the M.P. Accommodation Control Act, 1961, (herein after referred to as 'the Act') there is no provision for filing of written statement. He submitted that once leave is granted under section 23-C of the Act then Rent Controlling Authority is required to proceed under the provisions of section 23-D of the Act. Section 23-D of the Act lays down that the Rent Controlling Authority shall proceed to decide the application within six months from the date of grant of leave. Learned Counsel for the petitioner, therefore, submitted that there is no provision for filing the written statement. Tenant can defend on the grounds on which leave to defend is granted. Tenant has no right to take any other ground other than the grounds on which leave to defend is allowed. He submitted that intention of legislature will be frustrated if time to file written statement is granted. He submitted that special provision for eviction of tenant for specified categories of landlord is defined in section 23-J of the Act for their bona fide need. If opportunity to file written statement under the Code of Civil Procedure (hereinafter referred to as the Code) is given to the tenant after leave to defend is allowed then entire purpose of enactment shall be frustrated.
4. Learned Counsel for the respondent placed reliance upon the judgment of this Court in the case of Inspecting Assistant Commissioner of Income Tax, Gwalior V. Rajrani Sahi and Anr. 1987 MPLJ 523 and submitted that once permission to defend his case to the defendant is granted then he has right to contest the claim on all grounds. He submitted that in the case of Inspecting Assistant Commissioner of Income Tax (Supra) it has been categorically laid down that issues of "leave" and "eviction" must be tried separately as several and distinct issues. After leave is granted permission must be granted to file written statement and tenant has a right to contest eviction on all grounds raised in the written statement.
5. Learned Counsel for the respondent submitted that section 23-D provides that the dispute shall be governed by the provisions under the Small Cause Courts Act. Under section 23-D of the Act it is provided that the Rent Controlling Authority shall, while holding an enquiry in a proceeding to which this Chapter applies, follow as far as practicable, the practice and procedure of a Court of Small Causes including the recording of evidence under the Provincial Small Cause Courts Act, 1887. The Rent Controlling Authority shall as far as possible, proceed with the hearing of the application from day to day. He submitted that the correct law has been laid down in the case of Inspecting Assistant Commissioner of Income Tax (supra). He submitted that under section 17 of the Provincial Small Cause Courts Act the court is required to follow the procedure laid down under the Code. Therefore, once leave is granted tenant has a right to file written statement. Learned referring Judge has referred this question doubting on the correctness of the judgment in the case of Inspecting Assistant Commissioner of Income Tax (supra).
6. The judgment in the case of Inspecting Assistant Commissioner of Income Tax (supra) is over ruled by the Division Bench of this Court in the case of Ramdas v. Smt. Shakuntala 1995 JLJ 272 and it is held that Inspecting Assistant Commissioner of Income Tax (supra) has not laid down the correct law and the finding that the issues of 'leave' and 'eviction' are separate and distinct and have to be decided separately, distinctly and independently, the order cannot be held to be laying down a good law. As such, the law laid down in the case of Inspecting Assistant Commissioner of Income Tax (Supra) is no longer a good law.
7. Chapter III-A has been introduced by the M.P. Amending Act no.7 of 1985. The Statements of Objects and Reasons of Act 7 of 1985 are reproduced below:
Statement of Objects and Reasons.-The Madhya Pradesh Accommodation Control Act, 1961 (No.4 of 1961) was amended by Madhya Pradesh Act, No.27 of 1983 to provide a special forum for expeditious disposal of eviction proceeding filed by the land-lord in general on grounds of "bona-fide" need. However, it was brought to the notice of Government that the new forum provided by the said amendment was being misused by certain land-lords to evict tenants. It was, therefore, proposed to restrict the application of the provision relating to new forum only to the specified categories of land-lords like retired Government servants including members of Defence Services, widows and divorced wife, and physically handicapped persons etc. This Chapter has provided a special forum for expeditious disposal of eviction proceeding filed by landlord in general on the grounds of "bona fide" need. New forum is related to only specified categories of landlord defined in section 23-J of the Act. The intention of legislature is to provide for expeditious decision on the eviction proceedings filed by the landlord and the procedure has been laid down under section 23-D of the Act. Judgment in the case of Inspecting Assistant Commissioner of Income Tax (supra) is expressly over-ruled by the judgment in the case of Ramdas (supra) by the Division Bench, therefore, question posed is examined in terms of the Act.
8. Now, the question is when the specified procedure is laid down for eviction of tenant whether defendant should be granted permission to grant leave. Chapter III-A is reproduced below:
23-A. Special provision for eviction of tenant on ground of bona fide requirement.-Notwithstanding anything contained in any other law for the time being in force or contract to the contrary, a landlord may submit an application, signed and verified in a manner provided in rules 14 and 15 of Order VI of the First Schedule to the Code, 1908 (V of 1908) as if it were a plaint to the Rent Controlling Authority on one or more of the following grounds for an order directing the tenant to put the landlord in possession of the accommodation, namely:
(a) that the accommodation let for residential purposes is required "bona fide" by the landlord for occupation as residence for himself or for any member of his family, or for any person for whose benefit, the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned.
(b) that the accommodation let for non-residential purposes is required "bona fide" by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters, if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned:
Provided that where a person who is a landlord has acquired any accommodation or any interest therein by transfer, no application for eviction of tenant of such accommodation shall be maintainable at the instance of such person unless a period of one year has elapsed from the date of such acquisition.
23-B. Rent Controlling Authority to issue summons in relation to every application under section 23-A. (1) The Rent Controlling Authority shall issue to the tenant a summons, in relation to every application referred to in section 23-A, in the form specified in the Second Schedule.
(2) Save as otherwise provided in this Act, the provisions of Order V and Order XVI of the First Schedule to the Code, 1908 (V of 1908) regarding issue and service of summons to a defendant and summoning and attendance of witnesses to give evidence or to produce documents shall apply mutates mutandis to issue and service of any summons to a tenant or opposite party or to a witness to give evidence or to produce documents in an inquiry or proceeding under this Chapter.
23-C. Tenant not entitled to contest except under certain circumstances.-(1) The tenant on whom the summons is served in the form specified in the Second Schedule shall not contest the prayer for eviction from the accommodation unless he files within fifteen days from the date of service of the summons, an application supported by an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Rent Controlling Authority as thereinafter provided, and in default of his appearance in pursuance of the summons or in default of his obtaining such leave, or if such leave is refused, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant. The Rent Controlling Authority shall in such a case pass an order of eviction of the tenant from the accommodation:
Provided that the Rent Controlling Authority may, for sufficient cause shown by the tenant, excuse the delay of the tenant in entering appearance or in applying for leave to defend the application for eviction and where "ex-parte" order has been passed, may set it aside.
(2) The Rent controlling Authority shall, within one month of the date of receipt of application, give to the tenant, if necessary, leave to contest the application, if the application supported by an affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the accommodation on the ground specified in section 23-A. 23-D Procedure to be followed by Rent Controlling Authority on grant of leave to tenant to contest.-(1) Where leave is granted to the tenant to contest the application, the Rent Controlling Authority shall commence the hearing of the application as early as practicable and decide the same, as far as may be, within six months of the order of granting of leave to the tenant to contest application.
(2) The Rent Controlling Authority shall, while holding an enquiry in a proceeding to which this Chapter applies, follow as far as practicable, the practice and procedure of a Court of Small Causes including the recording of evidence under the Provincial Small Cause Courts Act, 1887 (IX of 1887). The Rent Controlling Authority shall as far as possible, proceed with the hearing of the application from day to day.
(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) and (b), as the case may be of section 23-A is bona fide.
23-J. Definition of landlord for the purposes of Chapter III-A. For the purposes of this Chapter 'landlord' means a landlord who is -
(i) a retired servant of any Government including a retired member of Defence Services; or
(ii) a retired servant of a company owned or controlled either by the Central or State Government; or
(iii) a widow or a divorced wife; or
(iv) physically handicapped person; or
(v) a servant of any Government including a member of defence services who, according to his service conditions, is not entitled to Government accommodation on his posting to a place where he owns a house or is entitled to such accommodation only on payment of a penal rent on his posting to such a place.
9. The specified categories of landlord have a right to file an application for eviction of tenant on the ground of their "bona fide" requirement. Section 23-C prohibits contest of application except under certain circumstances. Section 23-C lays down that a tenant who is served with summons in the specified form shall not contest the prayer for eviction from the accommodation unless he files within 15 days from the date of service of summons, an application supported by an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Rent Controlling Authority. It further provides that tenant shall submit an application supported by an affidavit stating the grounds on which he seeks to contest the application for eviction. Once this application is filed and is examined then the Rent Controlling Authority shall, within one month from the date of receipt of the application, examine the application supported by an affidavit by the tenant and grant him leave to defend on all the grounds mentioned in the application or on some limited grounds until and unless Rent Controlling Authority is satisfied that the tenant discloses such facts as would disentitle the landlord from obtaining an order of recovery of possession of the accommodation on the grounds specified in section 23 A.
10. Thus, the grant of leave is not automatic but it requires the application of mind by the Rent Controlling Authority and leave should be granted only after Rent Controlling Authority is satisfied that tenant has disclosed such facts which would disentitle the landlord from obtaining an order for the recovery of possession on the grounds specified under section 23-A.
11. Section 23-D lays down the procedure to be followed by the Rent Controlling Authority after the grant of leave to contest. Where leave is granted to the tenant to contest the application, the Rent Controlling Authority is required to commence the hearing of the application as early as practicable and decide the same, as far as may be, within six months of the order of grant of leave to the tenant to contest the application. Thus, section 23-D(1) clearly specifies that Rent Controlling Authority shall commence the hearing of the application as early as practicable. Thus, use of word "shall" clearly indicates a legislative intent that the Rent Controlling Authority has to proceed to decide the application after grant of leave.
12. The contention of counsel for respondent is that Section 23-D(2) lays down the procedure as far as practicable, the practice and procedure of a Court of Small Causes including the recording of evidence under the Provincial Small Cause Courts Act, 1887. Counsel for respondent further contended that since the Code is applicable, therefore, opportunity to file written statement should be granted to the tenant after grant of leave. Rent Controller is required to follow as far as practicable the practice and procedure of a Court of Small Causes including the recording of evidence under the Provincial Small Cause Courts Act, 1887. Procedure to be followed by a Court of Small Causes is provided under section 17 of the Provincial Small Cause Courts Act which is reproduced below:
17. Application of the Code.-(1) The procedure prescribed in the Code, 1908, shall save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits:
Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed.
(2) Whereas person has become liable as surety under the proviso to Sub-section (1), the security may be realized in manner provided by Section 145 of the Code, 1908.
13. Section 23-D lays down that the Rent Controlling Authority shall follow the procedure as far as practicable of the Small Cause Courts. Thus, the procedure prescribed in the Code in so far as it relates to the proceedings under the Provincial Small Cause Courts Act is required to be followed by the Court of Small Causes.
14. As regards procedure is concerned, section 7 of the Code lays down that certain provisions in the body of the Code shall not apply to the Courts established under the Provincial Small Cause Courts Act, 1887 and the provisions shall not be extended to the Court of Small Causes. Section 7 is reproduced below:
7. Provincial Small Cause Courts.- The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887(9 of 1887), [or under the Berar Small Cause Courts Law, 1905], or to Courts exercising the jurisdiction of a Court of Small Causes [under the said Act or Law], [or to Courts in] [any part of India to which the said Act does not extend] exercising a corresponding jurisdiction] that is to in say.-
(a) So much of the body of the Code as relates to
(i) Suits excepted from the cognizance of a Court of Small Causes;
(ii) The execution of decrees in such suits;
(iii) The execution of decrees against immovable property; and
(b) The following Sections, that is to say.-
Section 9, Sections 91 and 92, Sections 94 and 95 [so far as they authorize or relate to (i) orders for the attachment of immovable property;
(ii) injunctions,
(iii) the appointment of a receiver of immovable property, or
(iv) the interlocutory orders referred to in Clause (e) of Section 94], and Sections 96 to 112 and 115.
15. Thus, the provisions of sections 96, 104, 112 and 115 of the Code are not applicable to the Court of Small Causes. Similarly Order L of the Code excludes the applicability of some of the Rules and Orders to the Court of Small causes. Order L is reproduced below:
ORDER L 1.
Provincial Small Cause Courts.-The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887) [or under the Berar Small Cause Courts Law, 1905] or to Courts exercising the jurisdiction of a Court of Small Causes [under the said Act or Law], [or to Courts in [any part of India to which the said Act does not extend exercising a corresponding jurisdiction] that is to say
(a) So much of this Schedule as relates to
(i) Suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits;
(ii)The execution of decrees against immovable property or the interest of a partner in partnership property;
(iii)The settlement of issues; and
(b) The following Rules and orders:
Order II, Rule 1 (frame of suit);
Order X, Rule 3 (record of examination of parties);
Order XV, except so much of Rule 4 as provides for the pronouncement at once of judgment;
Order XVIII, Rules 5 to 12 (evidence);
Orders XLI to XLV (appeals);
Order XLVII, Rules 2, 3, 5, 6, 7 (review);
Order LI.
Thus, limited sections and rules and orders of the Code are applicable to the proceedings under the Small Cause including recording of the evidence.
16. It is apparent that provisions of Order XVIII of the Code for recording evidence are not applicable to the proceedings under the Small Cause Courts Act. Therefore, Rent Controlling Authority is required to record memorandum of evidence as under the provisions of Order XVIII Rule 13 of the Code. It is not necessary for the authority to take down or dictate or record the evidence of the witnesses at length; but as the examination of each witness proceeds, shall make in writing, or dictate directly on the typewriter, or cause to be mechanically recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the Judge or otherwise authenticated, and shall form part of the record. Rent Controlling Authority is not required to record evidence either under Order XVIII Rule 4 or Rule 5 of the Code.
17. Apex court in the case of Dhannalal v. Kalawatibai and Ors. , as held in para 9 of the judgment as under:
9. Broadly speaking, the main features of Chapter III-A are that it provides a summary procedure for the hearing of applications on the lines similar to those contained in Order 37 CPC. The tenant cannot contest the prayer for eviction from accommodation unless leave to defend is sought for by moving an application within the prescribed period of time and allowed. Default in appearance or refusal of leave results in the statement made by the landlord in the application for eviction being deemed to have been admitted by the tenant obliging the Rent Controlling Authority to pass an order of eviction. Where leave is granted to the tenant to contest the application, the Rent Controlling Authority shall hold an enquiry consistently with the practice and procedure of a Court of Small Causes. The requirement of the landlord is presumed to be bona fide unless the contrary is proved, that is to say, the burden of proof is placed on the tenant to rebut the case of the landlord contrary to the ordinary procedure in a civil court where the burden of proof lies on the landlord. As against as order of eviction passed by the RCA, a revision lies to the High Court and the remedy of appeal is excluded.
Thus, considering the scheme of the Act it is apparent that amendment is brought for providing speedy remedy to specified categories of landlords defined in Section 23-J of the Act following summary procedure.
18. Section 23-D of the Act provides that after grant of leave to the tenant to contest the application, the authority shall commence the hearing of the application as early as practicable and decide the same, as far as may be, within six months of the order of granting of leave to the tenant to contest the application. The mandate of legislature is clear and unambiguous. The authority is required to commence the hearing immediately after grant of leave. Filing of written statement is not the mandate of the legislature. Application is required to be decided on the grounds on which leave is granted to the tenant. Authority is required to decide the application on day to day basis, therefore, grant of time to file written statement under Order VIII Rule 1 of the Code will frustrate the mandate as tenant will be at liberty to seek adjournments on the grounds narrated by him and the adjournments may go beyond six months. Under section 23-D of the Act the procedure to be followed as far as practicable in a Court of Small Causes. Thus, if some provision is in conflict with the provisions of section 23-D of the Act then the procedure provided under section 23-D of the Act should be followed. Thus, permitting time to file written statement will frustrate the legislative intent. The intention of legislature is to provide expeditious decision of eviction proceedings filed by the landlord on the ground of bona fide need. On bare reading of section 23-D of the Act it is clear that there is no provision for filing of written statement as Rent Controlling Authority is required to decide the application within six months which indicates the intention of legislature for decision on the application on the grounds on which leave to defend is granted and there is no requirement for filing written statement.
19. Keeping the golden principle of the Interpretation of Statute and legislative intent in mind, language of section 23-D of the Act is clear and unambiguous. Rent Controlling Authority is bound to commence the hearing of the application as early as practicable and decide the same immediately after grant of leave to contest the application within a period of six months as far as may be. The legislature has nowhere provided for lengthy procedure after the grant of leave. When leave to defend is granted to the tenant on all or some grounds raised by the defendant, the Rent Controlling Authority is required to proceed with the application for eviction filed by the landlord and shall record evidence of the parties as there is no requirement of filing written statement by the defendant. Under section 23-D(3) there is a presumption of bona fide need in favour of the landlord. The presumption is rebutable, therefore, after grant of leave to defend, Rent Controlling Authority shall proceed to decide the bona fide need of the landlord and grounds on which leave to defend is granted. He is not required to decide anything else except the bona fide need. Thus, on plain reading of section 23(D) the language is clear and simple and there is no provision for filing written statement by the tenant after leave to defend is granted to him. The grounds on which tenant is permitted to defend is to be considered and decided by the Rent Controlling Authority under the Scheme of Chapter III-A and he is not required to decide any other dispute.
20. Thus, the question referred is answered as under:
under the scheme of Chapter III-A and the procedure laid down under section 23-D of the Act there is no provision for granting time to the tenant to file written statement after grant of leave to defend. The Rent Controlling Authority is required to proceed with the application for eviction and decide the application after considering the grounds on which leave to defend is granted to the tenant after recording evidence as provided under Order XVIII Rule 13 of the Code.
21. The reference is answered accordingly. File be placed before the appropriate Single bench for decision of the revision.