Madhya Pradesh High Court
M.P. Bhaya vs Ram Prakash Sharma on 18 March, 1996
Equivalent citations: 1997(2)MPLJ436, 1997 A I H C 47, (1997) 2 RENCR 647, (1997) 1 RENTLR 591, (1997) 1 JAB LJ 128, (1997) 2 MPLJ 436
JUDGMENT S.C. Pandey, J.
1. This is an appeal Under Section 100 of the Code of Civil Procedure, filed by the defendant against the judgment and decree dated 21-7-1995, passed by IX Additional District Judge, Bhopal, in Civil Appeal No. 62-A/94, arising out of judgment and decree dated 6-5-1994, passed by IV Civil, Judge Class-II, Bhopal, in Civil Suit No. 66-A/93.
2. The appellant is the tenant of respondent. He accepted the suit house No. 188 E-8, Bharatnagar, Shehpura, Bhopal on monthly rent of Rs. 800/- per month. The tenancy commenced from the first day of English calendar month and continued upto the last day thereof.
3. The respondent filed Civil Suit No. 66-A of 1993 against the appellant Under Sections 12(1)(a), 12(1)(c) and 12(1)(e) of M.P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act' for short). The allegations in the plaint regarding the grounds Under Section 12(1)(a) (ibid) were that the appellant did not deposit the rent of the suit house from January, 1990 despite notice of demand. It was also claimed that the appellant was quarrelling with the neighbours and creating nuisance and, therefore, he was liable to be evicted Under Section 12(1)(c) of the Act. The ground of eviction Under Section 12(1)(e) of the Act was that he had an alternative accommodation of his own in the city of Bhopal. The respondent also claimed a decree for arrears of rent from 1-1-1990 to 31-12-1990 and thereafter mesne profits @ Rs. 800/- per month.
4. The appellant denied the allegations made in the plaint. He denied that he was liable to be evicted under these grounds of the Act. He denied that he was in arrears of rent or that he created any nuisance as claimed by the respondent. He claimed that the respondent did not require the suit house bona fide for his residence.
5. The trial Court decreed the suit of the respondent on the ground of Sections 12(1)(a) and 12(1)(e) of the Act. It also granted a decree for mesne profit at the rate of Rs. 800/- per month till the date of delivery of possession against the appellant. The appeal filed by the appellant was rejected by the lower appellate Court and this Court admitted the appeal of respondent on the following substantial question of law by order dated 28th August, 1995 :-
"Whether the findings of the revisional Court with regard to striking out the defence of the defendant/appellant in a suit for eviction is final and the same cannot be looked into by the lower appellate Court in appeal?"
6. It appears from record that the trial Court had struck out the defence of the appellant on the ground of non-deposit of rent Under Section 13(6) of the Act. The appellant filed a Civil Revision No. 50/92 against the order of trial Court of striking out the defence. This Civil Revision No. 50 of 1992, dated 25th June, 1992 was disposed of by the learned District Judge, Bhopal by directing the appellant to file an application before the trial Court on the ground since he had deposited the rent after striking out the defence, the penalty of striking out defence may be withdrawn. It appears that the trial Court rejected the application and, therefore, the appellant filed another Civil Revision No. 101/92 before the District Judge, Bhopal, which was decided on 24th July, 1992. The learned District Judge dismissed the Civil Revision No. 101/92 on merits after notice to the opposite party.
7. The lower appellate Court has held that it was bound by the order passed by the District Judge, Bhopal in Civil Revision No. 101/92, dated 24-7-1992 of res judicata and, therefore, there is no scope for interference with the order of striking out the defence by the trial Court. The lower appellate Court confirmed the other findings of trial Court and dismissed the suit. In the aforesaid circumstances this Court has framed the aforesaid substantial question of law.
8. The learned counsel for the appellant relied on Ganesh Ram v. Smt Ramlakhan Devi, AIR 1981 Patna 36, Karam Singh v. Jagta, AIR 1982 Punjab 51, and urged that the revisional order was not binding upon the lower appellate Court. He urged that the respondent was in occupation of government accommodation as a Government servant, therefore, the need of the respondent was not bona fide. He referred to Brij Bhushan v. S. S. Motilal, 1976 MPLJ Note 41.
9. The learned counsel for the respondent urged that in essence the exercise of revisional jurisdiction partakes character of appellate power albeit of limited nature. He relied on Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC1. He further urged that it is well established that decision rendered at one stage of litigation is res judicata at subsequent stage. The learned counsel for the respondent referred to Satyadhayan Ghosal v. Smt. Deorajin Debi, AIR 1960 SC 941 and Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993.
10. Having heard the counsel for the parties this Court comes to conclusion that the substantial question of law must be decided against the appellant. After going through both the revisions, this Court finds that the District Judge had decided the case of the appellants on merits by order dated 24-7-1972 in Civil Revision No. 101/92. That is to say the learned District Judge did not say that revision was not maintainable. He could have entertained the revision. Having entertained the revision, he could have, if he chose to do so, refused to exercise his discretionary jurisdiction. In that case decision of learned District Judge would not have been binding on the appellate Court. Once the learned District Judge decided the revision on merits, that is to say, he dismissed the revision after considering the points raised by the appellant, there is no room for argument that appellate Court, which is the Court of coordinate jurisdiction, can set aside those findings in appellate jurisdiction. The case cited by the learned counsel for the appellant reported in Karamsingh v. Jagta (supra) takes this view. It is not necessary to burden this judgment with all that is said in that judgment. It is sufficient to point out that in that case the revision was dismissed in limine without giving any reason. Thus, it was case of refusal to exercise of jurisdiction Under Section 115 of the Code of Civil Procedure. The case of Ganesh Ram case (supra) is not an authority for the proposition that even if the revision is dismissed by a Court on merits the same Court in exercise of appellate jurisdiction, can reopen the case. On the other hand, there is direct authority of this Court in the case of Shyamacharan Raghubar Prasad v. Sheojee Bhai Jairam Chattri, 1964 MPLJ 502 decided by a Division Bench of this Court consisting of Honi P. V. Dixit, C.J. and Hon. K. L. Pandey, J. In that case a learned single Judge of this Court had finally decided a civil revision arising from an interlocutory matter. The same point was sought to be agitated before Division Bench. The Division Bench, after considering decisions of Privy Council and that of the Supreme Court, Satyadhayan Ghosal v. Smt. Deorajin Debi (supra) held that Division Bench was bound by the decision of learned single Judge. However, the Division Bench pointed out that this decision could not be binding on the Supreme Court in appeal from the final decree. The following observations of Dixit, C.J., who spoke for the Division Bench are pertinent:-
"The judgment of the Supreme Court in Satyadhayan's case (7), makes it clear that an interlocutory order is final as regards the Court making that order. But its correctness can be challenged in an appeal from the final decree or order even though no appeal had been filed against the interlocutory order either because none lay or because even though an appeal lay none was filed. On the principles laid down by the Supreme Court in Satyadhayan's case (1); there can be no doubt that the order of Bhargava, J. dated the 26th October, 1962 made in C. R. No. 385 of 1962, was final as regards this Court. Its correctness could not be challenged in this Court. It could be challenged only before the Supreme Court in an appeal from the final decree. It is important to note in Satyadhayan's case (1), while holding that the landlords-appellants before them were not precluded from raising in the Supreme Court the question of the availability of Section 28 of the original Thika Tenancy Act to the tenants, the Supreme Court nowhere said in that decision that the view taken by the Calcutta High Court that the landlords could not, in the revision petition they filed, raise this question, which was res judicata between the parties as it had been decided in the revision petition filed earlier by the tenants, was erroneous." (Para 13).
11. Although no question of law was specifically framed by this Court and nor did the counsel for parties address on this question, it is clear from the aforesaid discussion of the Division Bench that judgment of the learned District Judge would not be binding on this Court in this second appeal, if the law in the meanwhile has not changed. By amendment of 1976 in the Code of Civil Procedure new provisions have been added. Section 11 of the Code of Civil Procedure is also amended. It is open to a party to argue that the decision of a Court of limited jurisdiction in view of explanation VIII to Section 11 of the Code of Civil Procedure, would be binding even on superior Court. This would be a moot point. However, no attempt was made by the counsel for the appellant to get a new substantial question of law framed or even address the Court on this point at the time of final argument. This Court is unable to express any considered opinion on this point.
12. Nevertheless this Court has examined the order passed by learned District Judge, Bhopal in Civil Revision No. 50/92, dated 25th June, 1992 and Civil Revision No. 101/92, dated 24th July, 1992; and that of the trial Court from which these revisions arose, in order to do justice between the parties. Apart from the question of res judicata the reasoning given by the learned District Judge for not interfering with the order of striking out defence of the appellant, appears to be correct. Without going into details, in Civil Revision No. 101/92, the learned District Judge has pointed out that the appellant waited for 21/2 years for depositing the rent. He deposited the rent only after defence was struck off. In such a situation there was no scope for recalling the order of striking off defence. This Court holds that a tenant cannot claim benefit of deposit of rent without showing any reasonable cause for withholding the same. The landlord is entitled to receive rent each month when it is due. If the rent is not paid, the landlord is bound to lose the interest on the amount due to him and the tenant will be unduly enriched. The Court cannot compel the tenant to pay interest on the rent withheld. There may be in a given case some justification in non-payment for example there may be genuine dispute as to quantum of rent or dispute as to party to whom rent is payable when the landlord may be claiming a derivative title or there may be dispute inter se between a number of landlords. There is no such justification in this case.
13. It was further argued that since the respondent was in occupation of government quarter, he had no bona fide need. There is no substance in this argument. The landlord must be the owner of the alternative accommodation. This is the plain language of Section 12(1)(e) of the Act. The decision in the case of Brijbhushan, Brij Bhushan v. S. S. Motilal (supra) does not help the appellant as it related to interpretation of Section 12(1)(d) of the Act.
14. For the reasons given hereinbefore, this Court comes to conclusion that this appeal is liable to be dismissed with costs. It is dismissed accordingly.