Madhya Pradesh High Court
Laxminarayan S. Sharma vs Rameshwar R. Khandelwal on 16 January, 1989
Equivalent citations: AIR1990MP155, AIR 1990 MADHYA PRADESH 155
ORDER S.K. Dubey, J.
1. The petitioner-tenant, aggrieved of the order of eviction passed under Section 23A of the M.P. Accommodation Control Act, 1961, for short "the Act, in case No.6/84-85A 90(7) on 9-5-85 by the Rent Controlling Authority, Mandsaur, has come up in revision under Section 23E of the Act.
2. Brief facts leading to this revision are that the respondent invoked the special provisions as contained in Chapter IIIA of the Act and filed an application under Section 23A(a) of the Act, for seeking eviction of the petitioner from the accommdation let to the petitioner. Summons was issued and served on the petitioner on 5-2-85 but the summons so issued did not accompany a copy of the plaint filed by the respondent. The petitioner appeared on the date fixed and brought this fact to the notice of the Rent Controlling Authority stating that he is not in a position to apply for obtaining leave, as required under Section 23C of the Act in the absence of the copy of the plaint as the petitioner cannot make an application as to on what grounds the petitioner obtains leave The Rent Controlling Authority ordered the respondent to supply a copy of the plaint to the petitioner. After the supply of the copy to the petitioner, the petitioner did not apply for obtaining leave within 15 days from the date of supply of the copy but applied for obtaining leave on the date fixed by the Court on 8-3-85. This application was supported by an affidavit. On opposition, the Rent Controlling Authority refused leave on the ground that under Section 23C of the Act, when summon is served on a tenant, such tenant has to apply for obtaining leave to the Rent Controlling Authority within 15 days from the date of receipt of summons. Hence, the application filed by the petitioner, being barred by time, was dismissed by the Rent Controlling Authority and the right of the petitioner to file the written statement or to defend the case was denied and the case was fixed for recording the evidence of the respondent. Against this order, the petitioner has come up in revision.
3. Shri R. S. Sikhwal learned counsel for the petitioner contended that the service of the summons issued under Section 23B(1) of the Act was not in accordance with the provisions of Order 5, Rule 2, C.P.C., which are mandatory, i.e. it did not accompany a copy of the plaint or the application. As such, it was not a valid service. The petitioner was vigilant, hence, in response to the summons, he appeared in the Court and made a grievance. The copy of the plaint was supplied to him and after supply of copy, the petitioner applied for obtaining leave to defend, on the date fixed by the Court. Therefore, the order of the Rent Controlling Authority, in these circumstances, is illegal and deserves to be set aside. Moreover, the Rent Controlling Authority has not found that even if the petitioner did not apply for leave within 15 days of the receipt of the summons, there was a sufficient cause for not applying within the said period or not. Learned counsel placed reliance on the four decisions of this Court in Gupta Sahitya Sadan v. Sanchalak, M. P. Patya Nigam (1980 (2) MP Weekly Notes Note No. 157); Sobhagmalv. Rajkumar Pande (1986(1) MP Weekly Notes Note No. 198); Bhagirath v. Bhanwarpal, 1980 Jab LJ 572 and Tara Prakash Singh v. Balram (1984 MP Weekly Notes No. 534).
4. Shri P. K. Sharma, learned counsel for the respondent-landlord, supported the order of the Rent Controlling Authority and contended that the provisions of Section 23C of the Act are stringent and are mandatory. After the summons under Section 23B of the Act of an application under Section 23A of the Act is served upon a tenant, the tenant under Section 23C of the Act has to file, within 15 days of 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. Otherwise, the tenant suffers the consequences. Learned counsel further contended that in the facts of the present case, the copy of the plaint was supplied to the petitioner but even after supply of such copy, the petitioner did not file an application supported by an affidavit seeking leave to defend the case but filed the same on the date fixed by the Rent Controlling Authority. Hence, in these circumstances, the impugned order of the Rent Controlling Authority does not call for any interference.
5. After hearing the counsel for the parties and perusing the record, 1 am of the opinion that this revision deserves to be allowed. The provisions of the Act are for the protection of the tenant so that the landlord may not get eviction on flimsy grounds. For specified categories of landlords under Section 23J of the Act, special provisions have been made in Chapter IIIA of the Act and such a landlord falling in the said category, without going to the Civil Court, may invoke the special provisions and may seek eyiction. Hence, the observance of the special provisions should be in strict compliance. After an application under Section 23A of the Act is filed and the Rent Controlling Authority issues summons to the tenant in relation to such an application referred to in Section 23A in the formspecified in the second Schedule, then such summons must accompany a copy of such application. The provisions of Order 5 and Order 16 of the first Schedule to the Code of Civil Procedure, 1908 regarding the issuance and service of summons to a defendant and summoning and attendance of witnesses to give evidence or to produce documents, have been applied 'mutatis mustandis' to the Act, for an enquiry or proceeding under Chapter IIIA of the Act which would be evident from a bare reading of Section 23B(2) of the Act. Order 5, C.P.C. provides for summons to a defendant to appear and answer the claim on a date to be therein specified. Order 5, Rule 2, C.P.C. reads as under :--
"Every sommons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement."
The language of Order 5, Rule 2, C.P.C. is mandatory and whenever summons is issued to a defendant, it must accompany a copy of the plaint or a concise statement. The use of the word 'shall' in Order 5, Rule 2, C.P.C. has made the provision mandatory. It has been held by this Court in 1980 Jab LJ 572 (supra) and (1980) 2 M PW Notes, Note No. 157 (supra) that when the summons issued did not accompany by a copy of the plaint, no doubt the summon indicated the name of the Court, the Suit No. and the next date of hearing, as per form prescribed for the summons, but it is not enough for compliance of Order 5, Rule 2, C.P.C. The law is that along with the summons, a copy of the plaint should be served as it is very much essential because the purpose of service of a copy of the plaint, or if so permitted, of a concise statement thereof, is to bring hometo the defendant knowledge of a particular suit having been instituted against him so that he may know what is the claim brought about by the plaintiff against him and he may make up his mind to defend himself in the case or not. This is the reason why the law makers have made Rule 2 of Order 5, C.P.C. mandatory by using the word "shall". Accordingly, if the summons is not issued, it cannot be said that there is a valied service on the defendant and when there is no valid service, even if an ex parte decree is passed on such service, it has to be set aside. In 1986 (1) M. P. Weekly Notes Note No. 198 (supra) this court, while considering the provisions of Order 5, Rule 2, C. P.C. and the provisions of Section 23-C of the Act, considered that when with the summons, a copy of the application was not accompanied, there was a non-compliance with the statutory provision resulting in prejudice to the petitioner and as such, such order was set aside, and the application for leave to defend the case filed beyond the prescribed period was held to be within limitation. As the facts alluded in para 2 above, admittedly a copy of the plaint was not supplied which was mandatory in view of the provisions of Section 23-B(2) of the Act and Order 5, Rule 2, C.P.C., there was a non-compliance with the statutory provision. The petitioner, being a vigilant person, appeared before the authority and drew the attention of the Authority towards this fact. The Authority directed the respondent to supply a copy of the application and thereafter fixed the next date. On the next date, the petitioner filed an application supported by an affidavit for grant of leave to defend. Therefore, in such circumstances, it cannot be said that the petitioner did not. comply with the provisions of Section 23-C of the Act as he did not file the application within 15 days from the date of supply of copy. Moreover there is a proviso to Section 23-C(1) of the Act, which reads as under:-
"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."
In the present case, the Rent Controlling Authority did not apply at all its mind to the fact that whether there was a sufficient cause to the tenant in the circumstances of the case or not, or the tenant was vigilant to his rights or not or was gorssly negligent in approaching the Court in time with an application under Section 23-C of the Act or that the delay was deliberate. The Rent Controlling Authority has, in fact, misdirected itself and ' passed an order overlooking the provisions of Section 23-B and 23-C of the Act, and in particular, propviso to Section 23-C(1) of the Act. Hence, the order, of the Rent Controlling Authority deserves to be set aside and is hereby set aside.
5A. From the facts and observations made above, it is evident that it is because the copy of the application was not accompanied with the summons, the petitioner could not file the application and an affidavit for obtaining leave within 15 days. There was no default on the part of the petitioner and it cannot be held that there was any delay on the part of the petitioner in applying for leave.
6. Hence, the impugned order of the Rent Controlling Authority, in the circumstances of the case is not aside and it is ordered that the Rent Controlling Authority shall now consider whether the petitioner-tenant has made out a case for obtaining leave to defend the application or not an will disposed of the said application of the petitioner-tenant treating it to be in time. The parties shall appear before the Rent Controlling Authority on 15-2-1989. Let the record of the Court of Rent Controlling Authority be sent back immediately so a to reach before that Authority on or before 15-2-1989. No fresh notices shalll be issued to the parties for their appearance.
7. In the result, the revision is allowed and the impugned order passed by the Rent Controlling Authority, Mandsaur is set aside and the Rent Controlling Authority is directed to dispose of the application of the petitioner for leave to defend, in accordance with law. No order as to costs in the circumstances of the case.