Dr. Upendra Kumar Gupta vs State of MP & Others.

This civil revision has been filed under Section 23E of M.P. Accommodation Control Act 1961 (hereinafter referred as ''The Act'') against the

order dated 10.09.2014 passed by Sub-Divisional Officer (Revenue) and Rent Controlling Authority, Mandla in Case No.06 (A-90/1)12-13

whereby learned Rent Controlling Authority allowed the non-applicant''s/plaintiff''s application filed under Section 23A of ''The Act'' and directed

the applicant to give the vacate possession of shop situated at Nazul Land No.53, 65/1 & 65/2 of Nazul Sheet No.18C (hereinafter called as ''suit

shop'') to non-applicant.

Brief facts of the case relevant to the disposal of this revision are that non-applicant filed an application under Section 23A of Act before Rent

Controlling Authority averring that she was the owner of suit shop which was given to applicant on monthly rent of Rs.375/- for 10 years. The non-

applicant also executed agreement in this regard on 07.07.1997 in favour of applicant. The period of lease was expired on 31.07.2007, even then,

the applicant did not give the vacant possession of suit shop to her. She is a widow lady and is in need of that suit shop for running her beauty

parlor and for that purpose she has no other reasonably suitable non-residential accommodation of her own in her occupation in the city due to

which she gave notice to applicant on 27.06.2007 through an advocate for vacating the suit shop but applicant did not vacate the suit shop so the

applicant be directed to give the vacate possession of the suit shop to the non-applicant. On that, the Rent Controlling Authority registered the case

No.06(A-90/1)12-13 and issued notice to applicant. The applicant after appearing before the authority filed an application and raised objection

that the suit premises was let out to him on a lease for a period of 30 years and as the said period was not over the proceedings under the

provisions of the Act were not tenable. The non-applicant also executed an agreement in favour of applicant and sold out the suit premises to him.

On that, the Rent Controlling Authority dismissed the non-applicant''s application observing that the dispute between the parties was to be resolved

only and only by the Civil Court. Being aggrieved from that order, non-applicant filed Civil Revision No.340/2010 which was disposed of by this

Court by order dated 08.02.2013 holding that the objection, if any, raised by the applicant and even if the applicant was entitled to any claim in

that respect, he either required to obtain the leave of the Rent Controlling Authority to contest the claim or to approach the Civil Court for

obtaining any order on the strength of any agreement that was said to have been executed by the non-applicant in his favour. At any rate, the Rent

Controlling Authority was not correct in rejecting the claim of the non-applicant and matter was remanded back to Rent Controlling Authority with

the direction to decide the application of the non-applicant in terms of the provisions of Section 23D of the Act and also directed that the applicant,

if he so wished, may make an application for grant of leave to contest before the Rent Controlling Authority. On that non-applicant filed a Review

Petition No.661/2013 which was disposed of by this Court by order dated 11.11.2013 and directed the Rent Controlling Authority that there was

no need for the applicant to file a fresh application for grant of leave to contest the claim of eviction made by the non-applicant as the applicant had

already filed an application for leave to defend and directed that the Rent Controlling Authority would first decide the applicant''s application for

grant of leave which was already pending before the Rent Controlling Authority and then proceed to decide the application for eviction filed by the

non-applicant. On that Rent Controlling Authority again heard the case and rejected the applicant''s application for leave to defend holding that

application was not filed within time and then accepting the non-applicant''s application passed the impugned order in her favour. Being aggrieved

from that, applicant filed this Civil Revision.

Learned counsel for the applicant submitted that Rent Controlling Authority after considering the objection raised by the applicant, dismissed the

petition for eviction vide order dated 27.08.2009 against which non-applicant filed Civil Revision No.340/2010 and applicant filed Review Petition

No.661/2013 whereby the order dated 27.08.2009 was set-aside and the Rent Controlling Authority was directed to first decide the application

filed by the applicant under Section 23C of the Act for grant of leave and then proceed further but Rent Controlling Authority without appreciating

the provisions of Section 39 of the Act and the circular dated 06.11.2000 transferred the proceedings to Sub-Divisional Officer (Revenue) vide its

order dated 12.04.2013, therefore, the order passed by the Sub-Divisional Officer (Revenue) was without jurisdiction as he was not designated

and notified as Rent Controlling Authority by the State Government under Section 23A of the Act. Earlier the Rent Controlling Authority held that

there was a cognizable dispute and dismissed the petition for eviction, therefore, the authority cannot travel beyond the order of its predecessor

and wrongly rejected the applicant''s application for grant of leave to defend as time barred by not considering the period taken by the

landlady/non-applicant in supply of documents towards the period of service of notice on tenant. The description of the property in the petition was

also not correct. The suit premises is situated on plot No.18-C while in the application it is mentioned that suit premises is situated on plot No.19-

C so according to the provisions of Order 7 Rule 3 of CPC, the application is not maintainable. The agreement filed by the non-applicant regarding

tenancy is not admissible in the evidence because that agreement was not properly stamped so the Rent Controlling Authority has no jurisdiction to

act upon that agreement but Rent Controlling Authority without appreciating these facts wrongly taking that agreement into consideration held that

the applicant is the tenant of the non-applicant. The Rent Controlling Authority allowed her application without taking the evidence of the non-

applicant which is contrary to law. From the averments of the application, it also appears that non-applicant gave suit shop to applicant on rent

after the death of her husband. So she is not entitled to file application under Section 23A of the Act. She also has other premises for running her

shop. The Rent Controlling Authority without considering these facts wrongly allowed the non-applicant''s application and rejected the applicant''s

application for leave to defend due to which the applicant could not produce his objection before Rent Controlling Authority. So it is prayed that

the order be set-aside.

Learned counsel for the non-applicant opposed the prayer and submitted that the scope of Civil Revision under Section 23E of the Act is limited

and cannot be construed taking into consideration the jurisdiction of the Appellate Court. In this regard he also placed reliance on Apex Court

judgement passed in Hindustan Petroleum Corporation Vs. Dilbahar Singh reported in (2014) 9 SCC 78. He further submitted that when Rent

Controlling Authority rejected applicant''s application for granting him leave to defend, the applicant is not entitled to contest the case. In these

circumstances Rent Controlling Authority has not committed any error in directing the applicant for vacating the suit shop under Section 23C of the

Act. He further submitted that as far as misdescription of the property and mentioning of incorrect number in the application is concerned, it is only

a technical error and does not go to the root of the case and on that basis the entire judgment cannot be set-aside. The learned trial court by order

dated 19/04/14 has already corrected that mistake. The judgment of Rent Controlling Authority is absolutely legal and valid and there is no legal

error which has been pointed out by the applicant either in revision memo or during the course of arguments on which this court requires

interference in the order passed by Rent Controlling Authority. The nonapplicant is a senior citizen and widow lady who has been fighting for her

rights since last ten years or more and the applicant has managed to keep the litigation pending on account of one or another reason and is enjoying

the suit accommodation, in which, he is mere a tenant and prays for rejection of revision.

This court has gone through the record and arguments put forth by the counsels of both the parties. According to Section 23 C of ''The Act'' the

applicant had to file an application for grant of leave to defend within 15 days from the service of notice. Although it appears from the record that

the notice of the case on the applicant was served on 12/11/08, while he filed the application of leave to defend on 12/11/08. But it also appears

from the record that applicant appeared before the Rent Controlling Authority in compliance of notice on 01/10/08 i.e., within fifteen days of

service of notice and on the same day he filed an application before Rent Controlling Authority averring that the non-applicant had not provided

copies of the documents submitted by her along with the application so it was not possible to submit the application for leave to defend in the

prescribed period. So non-applicant should be directed to provide copies of the document to him. On that learned Rent Controlling Authority

directed the non-applicant to give the copy of documents to applicant filed by her in support of her application. Non-applicant gave copy of

documents to applicant for the first time on 12/11/08. Thereafter applicant filed the application of leave to defend on 25/11/08 within fifteen days

of receiving the documents and in the application, the applicant clearly mentioned that the nonapplicant had not provided copies of the documents

to him and subsequently the non-applicant supplied the copies of the documents to the applicant then the applicant filed leave to defend within 15

days from that date. It also appears from the record that non-applicant filed as many as 10 documents in support of her application. Certainly the

copy of the documents filed by the non-applicant in support of her application was necessary for applicant to file application of leave to defend. So

in the considered opinion of this court learned Rent Controlling Authority committed mistake in rejecting the application of leave to defend filed by

the applicant as time barred. The reason assigned by the applicant in his application is sufficient to condone the delay in filing of application of leave

to defend by him.

The judgement of Apex Court relied by the learned counsel of applicant Hindustan Petroleum Corporation Vs. Dilbahar Singh (supra) does not

help non-applicant much because in that judgement also Apex Court held that during revision the High Court has a power to see whether the

finding of facts of Rent Controlling Authority is based on some legal evidence or suffers from any illegality like misreading of the evidence or

overlooking and ignoring the material evidence altogether or suffers from perversity or any such illegality or such finding has resulted in gross

miscarriage of justice. In this case also, it appeared from the record that Rent Controlling Authority rejected the applicant''s application of leave to

defend as time barred without appreciating the fact that for the first time non-applicant supplied the copies of documents to applicant on 12/11/08.

Hence revision is allowed and the impugned order of Rent Controlling Authority is set aside without going into the merit and matter is remanded

back to the Rent Controlling Authority with the direction that it will decide the application of leave to defend of applicant on merits after giving

opportunity of being heard to both the parties and then proceed in the matter according to law.

Parties are directed to appear before the Rent Controlling Authority on 29.01.2018. It also appears from the record that the matter is pending

since the year 2010, so it is also expected from Rent Controlling Authority that it will decide the matter as early as possible preferably within a

period of 6 months from receiving of the record.

Both the parties shall bear the cost of their revision. Office is directed to send the record of trial court immediately along with the copy of this

order.

C.C. as per rules.