Alok Garg vs Mithlesh Srivastava

Deepak Khot, J

The present revision has been filed by the petitioner/tenant assailing the order dated 15.09.2025 (Annexure P/12) passed by Rent Controlling Authority, Sub-Division Govindpura, District Bhopal in Case No.01/RCA/2024-2025, whereby an application submitted by the respondent/landlord under Section 23-A of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act of 1961' for the sake of brevity) has been allowed with a direction to the petitioner to vacate the residential house situated at House No.9, B-Sector, Sachidanand Nagar, BHEL, Bhopal and also deposit the arrears of rent in the bank and submit the information accordingly.

It has been contended by learned counsel for the petitioner that the Rent Controlling Authority (hereinafter referred to as "RCA") in non- compliance of the order passed by this Court vide order dated 18.06.2025 in Civil Revision No.65 of 2025 (Annexure P/11) and de hors the provision of section 23-C of the Act of 1961, has allowed the application of respondent/landlord under section 23-A of the Act of 1961. It is further submitted that this Court vide order dated 18.06.2025 has remanded back the matter setting aside the earlier order of eviction dated 09.12.2024 with direction to the authority to consider the application filed by the applicant under section 23-C of the Act of 1961 and thereafter pass final order in the case. It is also submitted that the authority without dwelling upon the application submitted by the petitioner under Section 23-C of the Act of 1961 has passed a final order by discussing the averments and contents of the application in the final order itself holding that the petitioner/non-applicant has not disclosed any clear defence and found such application not maintainable in absence of any evidence. It is submitted that the application submitted by the petitioner Annexure P/2 dated 16.07.2024 discloses the defence of the petitioner to contest the case of eviction filed under special category of section 23 of the Act of 1961. It has been further submitted that the petitioner in the application has stated that the respondent/landlord has the alternative accommodation within the vicinity and also does not fall within the special category defined in section 23-J of the Act of 1961. It is also submitted that the respondent/landlord is not having any bonafide need for the purpose of eviction under the Act of 1961. It is also submitted that the RCA absolutely in contravention of the order passed by this Court and the law on the point has passed an order which deserves to be quashed.

Per contra, learned counsel for the respondent/landlord has supported the findings of the impugned order. It is submitted that the Court has found that application does not contain the defences which is required under section 23-C of the Act of 1961, thus, holding that such application is not tenable and passed the final order on eviction by the impugned order and prayed for dismissal of the revision petition.

Heard learned counsel for the parties and perused the record.

It is evident from the impugned order dated 15.09.2025 that the authority while dealing with the application of eviction filed under section 23-A of the Act of 1961 on merits has also decided the application of the petitioner submitted under section 23-C of the Act of 1961, against the ambit and object of section 23-C of the Act of 1961. It is also found by this Court that in the earlier round of litigation, vide order dated 18.06.2025 (Annexure P/11), the Court had remanded back the matter to decide such an application submitted under section 23-C of the Act of 1961 and then pass final order in the matter. In the earlier round of litigation also, it was observed by the Court that despite of pendency of such an application, the final order was passed by the RCA, thus, it was expedient for the Court to pass such an order at the earlier stage, however, on bare perusal of the impugned order dated 15.09.2025, it is apparent that the authority has not dwelt with the application under Section 23-C of the Act of 1961 submitted by the petitioner but, in fact, has passed final order only with some discussion of the application and found it to be not tenable, in absence of evidence.

Section 23-C of the Act of 1961 provides that on application being submitted by the tenant supported with an affidavit stating the grounds on which he seeks to contest the application for eviction can apply for leave to defend.

From the bare perusal of the application, it is seen that the petitioner/tenant has made ground to defend such eviction proceeding, however, the authority vide impugned order in a cursory manner held that in absence of evidence, such application is not tenable. It is also found that no separate order sheet for such an application has been written. In the final order itself, such application has been decided and that is not the spirit of the statute as the Act of 1961 provides summary proceeding to be held by the RCA after accepting such an application.

Section 23-D of the Act of 1961 provides procedure to be followed by the RCA on grant of leave to the tenant to contest, which as per Section 23-D, if the RCA has granted the leave shall commence the hearing of the application as early as practicable and decide the same, within six months of the order of granting of the leave.

Section 23-D(2) of the Act of 1961 provides that the RCA shall hold an enquiry and 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.

From the bare perusal of the impugned order, it is seen by this Court that the RCA has not dealt with the application as provided under section 23-C and Section 23-D of the Act of 1961. If the RCA had to dwell upon the application then it was required for the authority to deal with such an application at an early stage before final hearing and not in the course of the final hearing so that if the leave had been granted to the petitioner/tenant, the petitioner/tenant would have submitted evidence or reply to the main application or if the authority had rejected the application, then the petitioner/tenant would have the chance to challenge such an order before the higher Court on the ground that the defence which has been taken by the petitioner is tenable in the eye of law, but the authority failed to exercise its jurisdiction and powers as provided under Section 23-C and Section 23-D of the Act of 1961 and passed final order. As it has already been observed by this Court hereinabove that it is not the spirit of the statute as the Act provides summary proceeding to be held by the RCA after accepting such an application.

The Hon'ble Apex Court in the case of B.L. Kashyap & Sons Ltd. v. JMS Steels & Power Corpn., (2022) 3 SCC 294 has observed the need of defence and the procedure to defend any application as per the mandate of the CPC. Order 37 provides summary proceedings and the procedure to be adopted by the Courts to decide such proceedings. The observation is reproduced hereunder :

"33. It is at once clear that even though in IDBI Trusteeship [IDBI Trusteeship Services Ltd. v. Hubtown Ltd., (2017) 1 SCC 568 : (2017) 1 SCC (Civ) 386] , this Court has observed that the principles stated in para 8 of Mechelec Engineers case [Mechelec Engineers & Manufacturers v. Basic Equipment Corpn., (1976) 4 SCC 687] shall stand superseded in the wake of amendment of Rule 3 of Order 37 but, on the core theme, the principles remain the same that grant of leave to defend (with or without conditions) is the ordinary rule; and denial of leave to defend is an exception. Putting it in other words, generally, the prayer for leave to defend is to be denied in such cases where the defendant has practically no defence and is unable to give out even a semblance of triable issues before the court.

33.1. As noticed, if the defendant satisfies the Court that he has substantial defence i.e. a defence which is likely to succeed, he is entitled to unconditional leave to defend. In the second eventuality, where the defendant raises triable issues indicating a fair or bona fide or reasonable defence, albeit not a positively good defence, he would be ordinarily entitled to unconditional leave to defend. In the third eventuality, where the defendant raises triable issues, but it remains doubtful if the defendant is raising the same in good faith or about genuineness of the issues, the trial court is expected to balance the requirements of expeditious disposal of commercial causes on one hand and of not shutting out triable issues by unduly severe orders on the other. Therefore, the trial court may impose conditions both as to time or mode of trial as well as payment into the court or furnishing security. In the fourth eventuality, where the proposed defence appears to be plausible but improbable, heightened conditions may be imposed as to the time or mode of trial as also of payment into the court or furnishing security or both, which may extend to the entire principal sum together with just and requisite interest.

33.2. Thus, it could be seen that in the case of substantial defence, the defendant is entitled to unconditional leave; and even in the case of a triable issue on a fair and reasonable defence, the defendant is ordinarily entitled to unconditional leave to defend. In case of doubts about the intent of the defendant or genuineness of the triable issues as also the probability of defence, the leave could yet be granted but while imposing conditions as to the time or mode of trial or payment or furnishing security. Thus, even in such cases of doubts or reservations, denial of leave to defend is not the rule; but appropriate conditions may be imposed while granting the leave. It is only in the case where the defendant is found to be having no substantial defence and/or raising no genuine triable issues coupled with the court's view that the defence is frivolous or vexatious that the leave to defend is to be refused and the plaintiff is entitled to judgment forthwith. Of course, in the case where any part of the amount claimed by the plaintiff is admitted by the defendant, leave to defend is not to be granted unless the amount so admitted is deposited by the defendant in the court.

33.3. Therefore, while dealing with an application seeking leave to defend, it would not be a correct approach to proceed as if denying the leave is the rule or that the leave to defend is to be granted only in exceptional cases or only in cases where the defence would appear to be a meritorious one. Even in the case of raising of triable issues, with the defendant indicating his having a fair or reasonable defence, he is ordinarily entitled to unconditional leave to defend unless there be any strong reason to deny the leave. It gets perforce reiterated that even if there remains a reasonable doubt about the probability of defence, sterner or higher conditions as stated above could be imposed while granting leave but, denying the leave would be ordinarily countenanced only in such cases where the defendant fails to show any genuine triable issue and the court finds the defence to be frivolous or vexatious."

This Court following the principle laid down by the Hon'ble Apex Court has found that the authority has not dwelt with the application filed by the petitioner under Section 23-C of the Act of 1961 as per the mandate of law and thus, has failed to exercise its jurisdiction correctly. It has also been found that despite the order passed by this Court in the earlier round of litigation, the Authority has passed the final order without deciding the application under section 23-C as required under the Act of 1961. The conduct of the authority is condemnable and also questionable. Thus, with the aforesaid observation and taking guidance from the enunciation of law reproduce hereinabove, this Court is of the considered opinion that the matter deserves to be remanded back to the authority to decide it afresh, as it is seen by this Court that despite of the remand, the authority did not dwell upon the application submitted by the petitioner under section 23-C of the Act of 1961 as per the mandate of law. Thus, the application under Section 23-C is hereby allowed and the matter is remanded back to the authority to decide the matter as per the procedure prescribed under section 23-C and section 23-D of the Act of 1961 by giving opportunity to the petitioner to submit the reply to the main application and also to submit evidence as required for the summary enquiry under Order 37 of the CPC on rebuttable issues. It is expected from the authority to decide such an application within six months, as per the mandate of the Act of 1961.

Thus, the impugned order dated 15.09.2025 (Annexure P/12) is hereby quashed. The matter is remanded back to the authority to decide it afresh, as per the direction issued hereinabove.

Let a copy of this order be sent to the Collector, District Bhopal to take cognizance of the matter and see that the orders passed by this Court are complied with in accordance with the direction and the law.

Revision is disposed of finally in above terms.