Madhya Pradesh High Court
Shyam Lal Vyas vs Inderchand Jain And Anr. on 8 September, 1998
Equivalent citations: 1999(1)MPLJ121, 1999 A I H C 3019, (1999) 1 MPLJ 121
ORDER S.P. Srivastava, J.
1. Heard the learned counsel for the plaintiff/applicant as well as the learned counsel representing the defendant-tenant/respondent.
2. Perused the record.
3. The applicant feels aggrieved by an order dated 27-3-1998, passed by the Rent Controlling Authority in the proceedings under Section 23-A(b) of the Madhya Pradesh Accommodation Control Act, 1961, whereunder it has rejected the application filed by the present applicant under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908, seeking review of the earlier order dated 16-12-1997, passed by the Rent Controlling Authority.
4. The applicant had filed an application seeking eviction of the tenant/respondents from the accommodation in dispute initiating the proceedings under Section 23-A of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as the Act'), claiming to fall within the ambit of the special category of the landlords contemplated thereunder.
5. It is not in dispute that the present applicant had filed the aforesaid application asserting that he was the owner of the premises and the said premises was required for establishing the fourth son of the applicant in business.
6. The provisions contained in Section 23-A(b) of the Act, require that in order to maintain an application under the aforesaid provision, it must be established that the accommodation let out for non-residential purposes was 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.
7. As has already been noticed hereinabove, the applicant claims to be the owner of the accommodation in dispute and the requirement set up is for the establishing of his son in the business in the said accommodation.
8. It is also not in dispute that the defendant-tenant/respondents had denied the ownership of the applicant asserting that in fact, he is not the owner thereof.
9. On an earlier occasion, the Rent Controlling Authority vide its order dated 31-7-1997, had permitted the parties to lead any documentary or oral evidence which they thought proper but had rejected the request of the defendant/tenant to summon the record relating to certain documents sought to be relied upon by him from the Nagar Palika Nigam.
10. Later on, however, vide the another order dated 16-12-1997, the Rent Controlling Authority had granted the request of the defendant/tenant for summoning the record from the Municipal Corporation, Gwalior.
11. The learned counsel for the defendant/tenant has pointed out that pursuant to the order dated 31-7-1997, the tenant had obtained the certified copies of the documents from the Municipal Corporation, Gwalior, which were sought to be relied upon by him and had brought them on the record. But, at the stage of admission or denial, the plaintiff/applicant denied the same, and therefore, necessity arose to summon the original record.
12. It is in the aforesaid context that the aforesaid order dated 16-12-1997, had been passed by the Rent Controlling Authority granting the request of the defendant/tenant to summon the original record containing the documents, certified copies whereof had already been brought on record of the present case, in view of the denial of the plaintiff/applicant.
13. Under the impugned order, the Rent Controlling Authority after considering the circumstances of the case, rejected the application filed by the applicant seeking review of the order dated 16-12-1997. The Rent Controlling Authority has further expressed an opinion that the plaintiff is not likely to suffer any prejudice on account of summoning of the record, and in fact, on the pleadings of the parties, the aforesaid documents will be necessary to be brought on the record as it will enable the Rent Controlling Authority to arrive at a correct conclusion.
14. The learned counsel for the applicant has strenuously urged that the order passed by the Rent Controlling Authority, in fact, operates as res judicata and it was not open to the Rent Controlling Authority to grant the request which had earlier been refused.
15. So far as the aforesaid aspect is concerned, suffice it to say that in the changed circumstances as has already been noticed hereinabove, in view of the denial of the plaintiff/applicant in respect of the documents sought to be relied upon by the defendant, the Rent Controlling Authority cannot be said to have committed any error in summoning the originals of the aforesaid documents from the Municipal Corporation, Gwalior. In this connection, the learned counsel for the defendant/tenant has placed reliance upon a decision of this Court in the case of Hukum Chand v. Nemichand, Civil Revision No. 742 of 1994(G): decided on 24-10-1994, reported in 1995(1) MPWN SN 64 at page 98.
16. The ratio of the aforesaid decision stands squarely attracted to the facts and circumstances of the present case and further the order dated 31-7-1997, does not disclose any reason for the rejection of the prayer. It does not contain any decision which could operate as res judicata.
17. Taking into consideration the facts and circumstances brought on record including those noticed hereinabove, I am not impressed with the submission of the learned counsel for the applicant that the Rent Controlling Authority had committed an error of jurisdiction while summoning the original record containing the documents in question from the Municipal Corporation, Gwalior, as complained of.
18. The learned counsel for the applicant has further contended that by the impugned order, the Rent Controlling Authority had enlarged the scope of the defence permitted to be raised by the defendant/tenant. The learned counsel for the applicant has placed reliance on the observations made by this Court dated 23-7-1997, while disposing of the civil revision No. 529/97 and 530/97, wherein this Court had refused to interfere in the order passed by the Rent Controlling Authority whereunder it had declined the request of the tenant for framing an additional issue.
19. This Court had also observed in its aforesaid decision that the provisions contained in Section 23 -A(b) of the Act, make it apparent that the person who is claiming to be a landlord can file a suit for eviction under Chapter III-A of the Act, not only in his capacity as landlord but also for the benefit of the person, who is claiming to be the owner indicating that if this be the position, then there is no necessity to frame any additional issue.
20. In the present case, a perusal of the application filed by the applicant seeking eviction of the tenant indicates that he was in fact claiming to be the owner of the property in dispute and the eviction was sought to establish his son in the business.
21. In the aforesaid circumstances, it was open for the defendant/tenant to raise a plea in regard to the maintainability of the application seeking eviction of the tenant on the ground that the plaintiff/applicant was not the owner as claimed, and therefore, an application under Section 23-A of the Act, was not maintainable.
22. The Rent Controlling Authority has already framed the issues which had been based on the pleadings of the parties. In any view of the matter, it is obvious that the observations made by this Court in its decision in the case of Mohandas v. Smt. Kusum Bai, Civil Revision No. 228 of 1986 (J) decided on 24-11-1986, reported in 1987-11 MPWNSN 111 at page 147, that the power of review is not an inherent power but is a creature of statute either to be conferred by law specifically or by necessary implication.
23. This Court in its aforesaid decision considering the provisions of the Madhya Pradesh Accommodation Control Act, 1961, had held that the power of review was not vested in the Rent Controlling Authority. The order of the Rent Controlling Authority reviewing its earlier order was held to be without jurisdiction. In support of the decision, the learned single Judge in the aforesaid decision had placed reliance upon the Full Bench decision of this Court in the case of Thakur Himal Singh v. Board of Revenue, reported in 1966 MPU 170 = 1966 JLJ 119, and a decision of the Supreme Court in the case of Patel Narshi Thakershi and Ors. v. Pradyumansinghji Arjunsinghji, reported in AIR 1970 SC 1273.
24. Taking into consideration the facts and circumstances brought on record and including those noticed in the impugned order, no justifiable ground has been made out for any interference in the impugned order by tin's Court while exercising the revisional jurisdiction contemplated under Section 23-E of the Act.
25. This revision is accordingly dismissed.