Dr. Sudhir Tiwari vs Smt. Bhagwanti Devi

R.S. Garg, J.

The applicant / tenant has preferred this Revision against the order dated 16.9.96 passed by First Additional Judge to the Court of District Judge, Jabalpur, in Civil Suit No. -1/A of 1996.

The brief facts necessary for the disposal of the Revision are that the respondent / Landlady filed a suit for eviction of the present applicant on various grounds. An application u/s 13 (6) of the M.P. Accommodation Control Act was tiled by the landlord on 14.3.96 inter alia pleading that the defendant did not deposit the rent in accordance with the provisions of law, therefore, the defence is liable to be struck out. The defendant raised objection u/s 13 (2) and submitted before the Court that with the consent of the landlord he has spent a sum of Rs. 2 lacs for renovation of the house and to make it habitable, therefore, he is entitled to adjust the said amount and the credit of the same ought to have been given to him. The learned trial Court treating the pleading of the defendant to be a dispute considered the plaintiffs application u/s 13 (6) of the Act. The learned trial Court after hearing the parties came to the conclusion that contrary to the agreement even if the applicant has spent the amount he would not be entitled to recover the same and he is liable to pay or deposit the rent. The learned trial Court for rejection the application placed reliance on Section 37 of the M.P. Accommodation Control Act and held that for the purpose of repairs a notice must be given to the landlord or an application ought to have been filed before the Rent Controlling Authority. The Court was also of the view that with the permission of the Rent Controlling Authority, the tenant is entitled to spend the money for repairing of the house. In the instant case, the defendant had come with the plea that with the permission and with the consent of the landlord he had spent a sum of Rs. 2 lacs for renovation of the house and to make it habitable. The pleading of the defendant are not in relation to the necessary repairs but lead to only inference that the house which was not habitable was made habitable with the consent of the landlord and he was entitled to adjust that amount. Section 37 of the M.P. Accommodation Control Act relates to duties of the landlard to keep accommodation in good repair Section 37 of the Act reads as under :

Landlord''s duty to keep accommodation in good repair:

(1) Every landlord shall be bound to keep the accommodation in good and tenantable repairs.

(2) If the landlord neglects or fails to make, within a reasonable time after notice in writing, any repairs which he is bound to make under sub-section (1), the tenant may make the same himself and deduct the expenses of such repairs from the rent or otherwise recover them from the landlord :

Provided that the amount so deducted or recoverable in any year shall not exceed one-twelfth of the rent payable by the tenant for that year.

(3) Where any repairs without which the accommodation is not habitable or usable except with undue inconvenience are to be made and the landlord neglects or fails to make them after notice in writing, the tenant may apply to the Rent Controlling Authority for permission to make such repairs himself and, may submit to the Rent Controlling Authority an estimate of the cost of such repairs, and thereupon, the Rent Controlling Authority may after giving the landlord an opportunity of being heard and after considering such estimate of the cost and making such inquires as it may consider necessary, by an order in writing, permit the tenant to make such repairs at such cost as may be specified in the order and it shall thereafter be lawful for the tenant to make such repairs himself and to deduct the cost thereof, which shall in no case exceed the amount so specified, from the rent or other wise recover it from the landlord :

Provided that the amount so deducted or recoverable in any year shall not exceed one-half of the rent payable by the tenant for that year;

Provided further that if any repairs not covered by the said amount are necessary in the opinion of the Rent Controlling Authority, and the tenant agrees to bear the excess cost himself the Rent Controlling Authority may permit the tenant to make such repairs.

The landlord is duty bound to keep the accommodation in good and tenantable repairs. According to Sub-section (2) of Section 37, on neglect or failure of the landlord to make within a reasonable time any repairs which he is bound to make under Sub-section (1) of Section 37, the tenant can make the repairs himself and deduct the expenses of such repairs from the rent or otherwise recover those from the landlord but the amount so deducted or recoverable in any year shall not exceed one-twelfth of the rent payable by the tenant for that year. According to Sub-section (3) of Section 37, in absence of the repairs if the house becomes in habitable or usable then after notice in writing, the tenant can apply to the Rent Controlling Authority, for permission to make such repairs himself. While so doing he may submit the estimate of the cost of such repairs and thereafter, the Rent Controlling Authority after hearing the parties and making an inquiry may permit the tenant to carry out such repairs. A perusal of Section 37 would only show that it comes into operation if the tenant has already taken the possession and tenancy had already commenced land the tenant was residing in the premises. In the instant case, the defendant/tenant had come with the case that the house was inhabitable and the tenant was required to spend a large sum to make it habitable and suitable for his purpose. If the house was required to be made habitable and suitable before the entry of the tenant in the house then Section 37 would not be applicable and the Court below, in my opinion has not properly appreciated the merit and effect of Section 37. Section 37 would apply to a case where the property was in possession of the tenant and the tenancy is in subsistence. But where with the consent of the landlord the tenant makes out the repairs and makes the house habitable and suitable for his purposes, then he would certainly be entitled to adjust the amount provided he is in a position to prove the alleged expenses and the permission to the extent of the expenses. In the instant case, the Court below did not properly appreciate the matter. The Court below was unjustified in holding that the defendant would only be entitled to a sum of Rs. 15.000/-towards the adjustment being one-twelfth of the yearly rent. The order passed by the Court below is set aside.

At this stage Shri Tiwari, learned counsel for the non-applicant placing reliance on paras 3 and 5 of the written-statement contended that the house was not required to be made habitable but in fact according to the pleadings of the defendant the premises which were taken on lease, as alleged, were required to be changed so that the building gives a lock of a well equipped hospital. According to Shri Tiwari defendant on his own pleadings is not entitled to adjust the said amount. I am unable to accept this contention. If the premises were let out for the purpose of residence and with the consent of landlord the defendant has made alteration, adjustments and renovation of the premises then also it would not fall under the provisions of Section 37 because this reconstruction, renovation alteration would not fall within the definition of repairs. In any case the question will have to be decided by the Lower Court.

The trial Court is directed to hold an inquiry into the matter in relation to the dispute raised by the defendant. If an occasion arises, the defendant shall be permitted to lead his evidence because without this evidence this dispute cannot be resolved. If the plaintiff in rebuttal wants to lead any evidence, opportunity shall be granted to the plaintiff also.

So far as rejection of the plaintiffs application dated 15.1.96 filed u/s 151. CPC is concerned, the court below has held that the defendant cannot raise the dispute as to who was engaged by the plaintiff to appear as a counsel in the Court and whether such person has made certain interpolation in the Vakalatnama or not. Shri Sanghi learned counsel for the appellant submits that the certified copies, the first obtained did not have the endorsement either regarding the name or the signatures of Shri N.P. on the Vakalatnama but subsequently the copy obtained on 9.2.96 clearly shows that the interpolation was made by the counsel by introducing his name in the body of the Vakalatnama and the counsel has later on affixed his signatures. According to Shri Tiwari, learned counsel for the Non-applicant, Shri N.P. was engaged by the plaintiff right from the beginning and the Vakalatnama was bearing his signature and name right from day one.

Perusal of the two copies of the Vakalatnama clearly show that in one Vakalatnama, name and signatures are not to be seen while in the other Vakalatnama name and signatures are to be found. The Court below adverting to this fact and without appreciating that from these copies an apparent interpolation was appearing simply observed that the application filed by the defendant was to cause unnecessary delay in disposal of the suit. The observation made by the Court below that if there are deletion or additions or interpolation in the Vakalatnama the plaintiff would only be an aggrieved person. The observation made by the learned Judge is contrary to law. In the context of this case it is to be seen that the defendant had been raising the objection that Mr. N.P. was never engaged as a counsel and would not appear in the case to represent the plaintiff. An application to that effect was required to be filed and thereafter, the name of Shri N.P. appeared in the Vakalatnama as alleged by the defendant. The trial Court''s observation that the defendant cannot raise a plea, regarding the date and time of Shri N.P. Signature of the Vakalatnama, because he is a third party to the said Vakalatnama which is an agreement between the client and the counsel is absolutely unwarranted. The Court below was also not justified in observing that the defendant is not concerned with as to who has signed on the Vakalatnama unless the plaintiff himself raised the grievance. The trial Court''s observation that the plaintiff has specifically stated that Shri N.P. was engaged as a counsel on day one and his signatures were obtained on the Vakalatnama, therefore, the defendant is not entitled to raise the dispute is again contrary to law. I am unable to accept the said observation made by the lower Court.

A Vakalatnama is an agreement between the counsel and the party who engages him gives an authority to plead on behalf of the party.

Order 3. Rule 1. C.P.C. reads as under:

Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf.

Rule 2 reads as under:

The recognized agents of parties by whom such appearance, application and acts may be made or done arc:-

(a) persons holding power of attorney authorizing liter to make and do such appearance, application and acts on behalf of all such parties;

(b) persons carrying on trade or business for and the names of parties not resident within the local jurisdiction of the Court within which limits, the appearance application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts.

According to Rule 4 no pleader shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such person or his recognized agent or by some other person duly authorised by or under a power of attorney to make such appointment. Every such appointment (Vakalatnama) shall be filed in Court and shall for the purposes of Sub-rule (1) of Rule 4 be deemed to be in force until determined with the leave of the Court by writing, signed by the client or the pleader. When the law says that no pleader shall act for any person in any Court, it clearly mandates that no pleader shall act, appear or plead in any court unless he holds a document in writing, singed by such person or his recognized agent. In the instant case, according to the defendant the interpolation is visible and floats on the surface because in the second certified copy obtained by the defendant, name and signature of Shri N.P. are to be found. It is not expected from a Court of law to have a platonic approach when the defendant brings to its notice that an officer of the Court, i.e. counsel has made certain interpolations in the records which have their own sanctity.

The Court below is directed to hold an enquiry into the allegations of the defendant and if Shri N.P. wants to appear as a witness then he shall also be permitted to give his evidence. The plaintiff would also be permitted to lead evidence to substantiate his plea that Shri N.P. was engaged by the defendant right form the inception and the signatures of Shri N.P. were obtained when the suit was instituted. After recording the evidence and hearing the parties, if the Court below comes to the conclusion that Shri N.P. was engaged by the plaintiff at the lime of the institution of the suit, then proper action shall be taken against the defendant for misleading the Court but if the Court ultimately comes to the conclusion that there are interpolations in the Vakalatnama and the submissions of Shri N.P. and the plaintiff are far from being true, the Court shall draw proper proceedings against the parties and shall also lodge a complaint in the criminal Court.

At this stage. Shri Tiwari submits that the enquiry which is required to be made by the lower Court be registered as a Miscellaneous Judicial Case under Rule 372 of the Civil Courts Rule. 1961. Acceding to sub-rule (24) of Rule 372, a Misc. Criminal Case under sections 476, 476-A, 478, 497-A and 480 of the Code of Criminal Procedure. 1898 can be registered as Masc., Judicial Case. In the instant case, no application u/s 340 of the New Code has been filed by the defendant. The application is u/s 151 for holding an enquiry as to when Shri N.P. same and signatures appeared on the Vakalatnama. The enquiry will have to be made in the suit itself. After the enquiry, if the Court records a finding that the signatures and the name were a result of interpolation, then the only procedure u/s 340 Cr. P.C. would be followed.

The applicant has filed an application u/s 151 C.P.C. before this Court that during the pendency of this revision, the Municipal Corporation, Jabalpur, has directed him to deposit a sum of Rsx. 7.981/- as property tax for and on behalf of the landlord, therefore, the Municipal Corporation be restrained from disconnecting water services and while making oral submissions it was submitted that the respondent / landlord be directed to deposit the said amount with the Municipal Corporation. In my opinion, this application does not deserve any consideration in this Court because such an application was never filed before the trial Court. On filing of such an application, the trial Court after hearing the parties shall pass suitable orders.

The counsel for the applicant submits that in view of the conduct of the learned trial Court, it would be in the fitness of things that the case is transferred to some other Court. Shri Tiwari learned counsel for the non-applicant has no objection. The case is withdrawn from the Court of the First Additional Judge to the Court of the District Judge. Jabalpur. The District Judge is directed to hear and decide the matter in accordance with law.

After this order was dictated in the open Court, but before it could be signed, Shri R.S. Tiwari learned counsel for the Non-petitioner appeared with Shri N.P. and made a request to this Court that Shri N.P. tenders his unconditional apology for making interpolation in the Vakalatnama. Shri N.P. submits that as he was asked by the plaintiff to appear on his behalf, he thought that his name could be added in Vakalatnama already existing on record. He further submits that when the plaintiff was ready and willing to engage him as counsel, he could have obtained a fresh Vakalatnama and could file the same but because of a little confusion, though he had a Vakalatnama with him, only made correction in the existing Vakalatnama, Shri N.P. further submits that there were no mala fides on his part nor he wanted to tamper with the records of the Court. He also submits that he thought that as his act is not to prejudice anybody, he was entitled to write his name in the existing Vakalatnama. Shri Tiwari also submits that, the reply filed by the plaintiff to the application filed by the defendant be treated as withdrawn and the plaintiff be also excused. Shri J.P. Sanghi was called and bewared. Shri Sanghi submits that the matter relates to Court record and its sanctity, therefore, he brought it to the notice of the Court and if Shri N.P. had conducted properly, he might not have pressed the application in the lower Court. Shri N.P. has tendered his apologies to Shri J.P. Sanghi. In my opinion, the apology submitted by Shri N.P. needs to be accepted. It is accordingly accepted but, however, Shri N.P. is warned that in future he should not enter into such activities. The plaintiff is also warned that in future when such allegations relating to tampering with the records of the Court are raised, such reply which speaks against the Court record, should not be filed. The reply filed by the plaintiff is treated to be withdrawn. The application filed by the defendant in relation to the Vakalatnama is disposed of, after accepting the apology of Shri N.P. The directions given by this Court in paras 11 and 12 are withdrawn but directions contained in para 14 are maintained.

In view of the above discussion, the revision is partly allowed. The trial Court is directed to hold an enquiry into the dispute raised by the plaintiff in accordance with the observations made by this Court. The application filed by the defendant u/s 151 C.P.C. against the plaintiff and Shri N.P. is disposed of. There shall be no orders as to costs.