Hariram Soni vs Smt. Sushila

Dr. T.N. Singh, J.

I have heard this appeal at some length and I was very anxious to decide the matter here and now, respondent''s counsel having rightly submitted that the suit being instituted ten years ago, a remand at this stage may be detrimental to her interest However, justice is evenly balanced and interest of both sides, when taken into consideration, can make justice wholesome, and not in any other manner. I am satisfied that if the matter is not remanded, albeit taking care that it is still disposed of expeditiously, the appellant is likely to suffer irreparably.

Now, the reasons for the remand. Appellant''s counsel Shri Lahoti has fairly confined his argument only to two points and as such, this appeal is being disposed of only on the points agitated. Accordingly, when the matter is heard in remand, the appeal shall be re-heard only on those two points and parties shill be debarred from agitating any other point. The first point is that a decree in terms of Section 12(1)(a) of the Madhya Pradesh Accommodation Control Act, 1961, for short, the ''Act'', could be passed only on satisfaction of the legal requirements thereof. In other words, the respondent/landlord could get a decree for eviction of the appellant/tenant only on proof of satisfaction of conditions precedent envisaged there under. In accepting this contention, I have no hesitation because this view indeed has been taken by this Court in Shri Gopal Shastri''s case Second Appeal No. 147 of 1976, disposed of on 8-7-1986. It was held, inter alia, in that case that the demand notice for arrears of rent served on the tenant by the landlord in prescribed manner would only give cause of action for eviction of the tenant there under if the demand was not satisfied and the arrear-rent was not cleared. In the instant case, the relevant issue concerning cause of action u/s 12(1)(a) of the Act being defective, I am satisfied that there has not been a proper consideration of the legal requirement which has definitely indented the jurisdictional competence of two courts below to pass the decree in this case. The trial Court framed issue No. 2 in following terms to decide the question:

KYA PRATIVADI KI OR SE 1-7-1973 SE BHADA SHESH HAI JO BAVJUD TALAB TAKAJE ADA NAHI KIYA ?

The Courts below evidently overlooked their jurisdictional competence in decreeing the suit on the ground that arrear-rent due since 1-7-1973 had not been paid despite demand. Because what was required to be considered was whether a notice of demand for the arrear-rent had been served on the tenant by the landlord in the prescribed manner, as held in Shri Gopal Shastri (supra). It is true that the courts below had considered the evidence, relevant to the question, namely, Exs. P/3 and P/6, as also defendant''s oral evidence, but the same has not been considered in the proper legal perspective. My attention is drawn to paras 3 and 6 of the plaint as also paras 3 and 6 of the written statement. Counsel for appellant placed the decisions in Madhya Pradesh State Road Transport Corporation, Bairagarh, 1976 WN 106 , Nawabzada Mohd. Ishaq Khan Vs. The Delhi Iron and Steel Co. Ltd., , Puwada Venkateswara Rao Vs. Chidamana Venkata Ramana, , Budha and Others Vs. Bedariya, , bearing on the question relating to the scope and ambit of Section 114(e) of the Evidence Act and Section 114 of M.P. General Clauses Act in the context of admissibility and evidentiary value of Exs. P/3 and P/6. However, I do not propose to say anything on the rival contentions raised because the matter is being remanded for re-hearing as Shri K.N. Gupta, counsel appearing for respondent has cautioned me, inviting my attention to the decision in Shaligram''s case, AIR 1954 Nag 223, wherein it was held that the question of rebuttal of a statutory presumption was a question of fact and my jurisdiction in second appeal to consider the said question being therefore, debarred.

Accordingly, the following additional issue is framed to decide tenant/appellant''s objection that the courts below had no jurisdiction to decree the suit in terms of Section 12(1)(a) of the Act:

Whether there was a legal and valid service of the notice contemplated under clause (a) of Section 12(1) and whether, therefore, the Plaintiff/landlord was entitled to'' a decree for eviction against the defendant/tenant ?

The issue shall, however, be decided by the lower appellate Court on the evidence available on record after hearing counsel.

The second point now, which is also a question of law and the objection, particularly based this time also on the jurisdictional competence of the courts below which, counsel submits, have not decided the inherent issue in terms of clause (e) of Section 12(1) of the Act inasmuch as the "bona fide" of the landlord/plaintiff, though evidendy in issue and duly covered by issue No. 3, has not been properly decided. Appellant''s counsel Shri Lahoti has drawn my attention to Mattulal Vs. Radhe Lal, , which, indeed, is a direct authority on the question dealing indeed with the selfsame provision of the Act. It was held that the question of "bona fide" has to be decided by applying objective test and mere landlord''s assertion of his bona fide requirement is not binding on the Court Shri Lahoti''s submission is that the question of bona fide requirement has not been decided by the Courts applying any objective test to the instant case inasmuch as the Courts have overlooked Plaintiffs own admission in para 4 of the plaint However, Shri Gupta submits that the statements of facts mentioned in para 4 are incorrect and, therefore, the admission may not be binding on the Plaintiff. Whatever that may be, that, question cannot be decided by me in this appeal in this Court and the Plaintiff/respondent, if she chooses to apply for amendment of her plaint, she may do so when the lower appellate Court hears the matter on remand. It is sufficient for me at this stage to hold that appellant''s contention is forceful, in so far as the finding on issue No. 3 being vitiated is concerned, for the simple reason that the courts have not decided the issue in the light of the law laid down in Mattum, supra. I say no more at this stage as the matter has to be re-considered on merits by die Court below.

In the result the appeal succeeds. The judgment and decree impugned here in are set aside. The matter is remanded to the Court of appeal below for disposal in terms of observations and directions hereinabove made. No order for costs in this appeal. Because this is a very old matter, it has to be disposed of expeditiousiy and rightly, at the Bar there is convergence in prayer and consensus in submissions. Counsel agree to appear in the Court below on 11th August 1986 to take a date of hearing of the appeal, which shall be decided within a period of three months.

Let the records be sent down at once.