Chhote Lal Patwa vs Manju Patwa

Sanjay Yadav, J.—Heard. Order dated 15.2.2012 passed by Civil Judge Class II, Pipariya, District Hoshangabad in Civil Suit No. 8-A/2010 is being assailed vide Article 227 of the Constitution of India.

By impugned order application preferred by the petitioner u/s 13(6) of the M.P. Accommodation Control Act, 1961 (hereinafter to be referred to as Act of 1961) seeking striking of defence of respondent/defendant has been rejected. Suit at the instance of the petitioners'' is for eviction and arrears of rent.

At this juncture pertinent it would be first to consider the submission put forth on behalf of respondent/defendant that the suit though filed is for eviction and arrears of rent has not been captioned being under the Act of 1961. It is urged that it cannot therefore be made out under which provisions of said Act the relief has been sought in the suit.

It is not disputed by either of the parties that the provision of the Act of 1961 are applicable in District Hoshangabad and at Piparia, a Tahsil of Hoshangabad. It is also not disputed that with the applicability of the Act action for eviction and for arrears of rent can only be brought under provisions of 1961 Act. Section 12 whereunder provides for grounds whereon suit for eviction can be filed. One of the ground being arrears of rent therefore, the suit for eviction and arrears of rent filed by petitioner/plaintiff pending before the Civil Judge Class II, Piparia has to be construed to be a suit u/s 12 of the Act of 1961. This deals with contention raised on behalf of respondent/defendant.

Now coming to the main issue which has been raised in the petition. The Trial Court rejected the application filed by the petitioner/plaintiff on the ground, that, the respondents/defendant has denied himself to be a tenant rather he claims to be a licencee to whom the provision of the Act of 1961 are not applicable.

Question therefore which crops up for consideration is as to whether while considering an application u/s 13(6) of the Act of 1961 it is open for the trial court to go into the merit of defence taken on behalf of the defendant.

In Inderlal Balkiram Vs. Mahngi Bai Imratlal and Others, , a Division Bench of this Court while dwelling upon an issue as to whether before invoking section 13 of the Act of 1961 defendant in a. suit for eviction whether there must be first a finding that the defendant is a tenant of the plaintiff, observed: "3. ...the word "Tenant" raised in Section 13(1) of the Act is merely connotative of the description which the plaintiff has given of the defendant and means nothing more than "defendant" but does not imply a defendant who has been found to be a tenant by the Court." It is further held:

For the Foregoing reasons our conclusion is that the learned First Civil Judge Second Class, Jabalpur erred in deferring consideration of the plaintiff applicant''s prayer u/s 13(6) of the M.P. Accommodation Control Act, 1961. for striking out of the non-applicants'' defence against eviction till after the determination of the question whether the non-applicants are tenants of the petitioner. The result is that this revision petition is allowed, the order dated 26th August 1966 of the learned Civil Judge is set aside and he is directed to dispose of in accordance with law, the plaintiff-applicant''s application for striking out the defendant-opponents defence against eviction. In the circumstances of the case, we leave the parties to bear their own costs of this petition.

That, the impugned order passed by the trial Court when is adjudged on the touchstone of above proponement of law leave no iota of doubt that the trial court has committed a patent error in rejecting the application u/s 13(6) of the Act of 1961 on the ground, that the tenancy has been denied by the respondents/defendants. In view whereof, impugned order is set aside. The matter is remitted to the trial court with a direction to reconsider the application u/s 13(6) of the Act of 1961 filed by petitioners/plaintiffs and pass a suitable order in accordance with law.

Petition is allowed to the extent above.

C.c. as per rules.