Madhya Pradesh High Court
Mahesh Chand And Ors. vs Nishar Khan on 30 October, 2007
Equivalent citations: 2007(4)MPHT522, AIR 2008 (NOC) 1340 (M. P.) (GWALIOR BENCH)
Author: P.K. Jaiswal
Bench: P.K. Jaiswal
ORDER P.K. Jaiswal, J.
1. Applicants by Shri P.C. Chandil, Advocate.
2. Heard on admission.
3. This revision application has been filed against the order dated 25-9-2007 passed by Rent Controlling Authority in Case No. 09/03-04/90-7, whereby Rent Controlling Authority rejected the application filed by the applicant under Section 23-A of the M.P. Accommodation Control Act, 1961 (for short 'the Act') on the ground that land lady Kalawati died during the pendency of the proceedings on 26-2-2007 and, therefore, cause of action does not survives to her heirs.
4. The application under Section 23-A of the Act was filed by Smt. Kalawati before Rent Controlling Authority. During the pendency of the application, she died on 26-2-2007. Thereafter, an application was filed for bringing her legal heirs on record. The said application was allowed and applicant who are legal heirs of Smt. Kalawati were impleaded before the Rent Controlling Authority. The Rent Controlling Authority by the impugned order has stated that applicants does not come within the category of Clause (j) of Section 23 of the Act and they do not belong to such category and, therefore, application was not maintainable and dismissed the same relying on the decision of this Court in the case of Santosh Kumar Jaiswal v. Joseph and Anr. 1999(2) MPJR 19. The question involved in this revision is squarely covered by the decision of Santosh Kumar Jaiswal (supra). Paras 7 and 8 are relevant which read as under:
7. So far as the definition of the landlord under the general provision is concerned, the proposition regarding the limit on the definition of the 'landlord' is no more res Integra. The suit was filed by Smt. Premlata Jacob under special provision in the capacity as a widow and that capacity was the basis for filing an application for ejectment, then, it is only that capacity which can maintain by the application. The moment the capacity vanishes, the application would become non-maintainable. In the present case, during the pendency of the proceedings, Smt. Premlata died. Her capacity as a widow vanished. The heirs and LRs cannot step in the capacity of the widow and therefore, they are not entitled to take advantage of the said capacity.
8. So far as the need is concerned, there is a separate provision under the Act and they can resort to that separate provision, i.e., Section 12 of the Act. Since the capacity of Smt. Premlata has vanished on account of her death, the application for ejectment as a special category of person becomes non-est.
5. Learned Counsel for the applicants submits that Gwalior Bench of this Court in the case of Indarmal v. Dropdabai 2004 (2) MPLJ 314, reconsidered the question and has held that application is maintainable and learned Rent Controlling Authority committed error in rejecting the application. In the case oilndarmal (supra), it is held that the cases of Narain v. Smt. Ansuyiya 1990 MPJR 517 and Naraian v. Basant Rao 1991(1) MPWN 166, were not considered by the learned Single Judge in the case of Smt. Jarina v. Hazzanbai 2001 (II) MPJR 326. In both the cases, eviction order was passed and thereafter during pendency of the revision, landlord died and, therefore, it has been held that the eviction order could not be interfered with due to death of special category landlord during pendency of the revision. Para 9 in the case of Indarmal (supra) is relevant which reads as under:
9. Learned Advocate for respondents has cited Smt. Jarina v. Hazzanbai (2001)(1) MPLR 326, in which the widow had died during the pendency of revision but the learned single Judge has held that the application could not continue. Such a view was taken without adverting to Narain v. Smt. Ansuyiya Bai 1990 MPLJ 517, and Narayan v. Basant Rao 1991 (1) MPLR 166, in both these cases decided earlier a different view was taken by Hon'ble Shri R.C. Lahoti, J. (as he then was). There it was held that in case the decision of R.C.A. was not illegal, improper or incorrect, the eviction order could not be interfered with due to death of special category landlord during the pendency of the revision. The view taken in Girishchand Chaturvedi v. Pushpa Bhopatkar 1999 (II) MPLJ SN 11 by Hon'ble Shri R.C. Garg, J. was also the same. With due respect, it is submitted that the learned Single Judge in such Jarina (supra), had not taken note of the fact that death during pendency of revision, could only the effect the viability of the revision and that provisions of Order 22 of the Code do not apply to revisions. Santosh Kumar Jaiswal v. Joseph 1995 MPLJ 273, in which the widow had died during the pendency of the proceedings was also decided by Civil Judge without adverting to these views. In Gangadhar v. Shantaram Lokhare 1994 JLJ 408, the question had not arisen at all as the widow was substituted by another special category landlord who was a retired Government servant. Clearly authorities relied upon by the respondents do not held them.
6. Here, in the present case, the widow had died during pendency of the original proceedings and no eviction order was passed and, therefore, decision of Santosh Kumar Jaiswal (supra), squarely covered with the issue involved in the present case and learned Rent Controlling Authority has not committed any error in rejecting the application, as not maintainable. The cause of action never survives to the applicants for proceeding with the case instituted by her mother for eviction under Section 23-A of the Act.
7. The next contention of the learned Counsel for the applicants is that under Order 7 Rule 10 of CPC, learned Rent Controlling Authority has to return the application for presentation before the proper Court and committed legal error in rejecting the application filed under Section 23-Aof the Act. Once it is held that application itself is not maintainable under Section 23-A of the Act, the learned Rent Controlling Authority has not committed any error in dismissing the application by holding that after death of widow, the application is not maintainable. The applicants are having remedy to file a suit for ejectment under the provision of Section 12 of the Act.
8. For the above reasons, the revision filed by the applicants has no merit and is accordingly dismissed summarily.