Madan Lal vs Vir Inder Kumar Kaura

S.C. Mittal, J.—Facts giving rise to this revision petition u/s 115 of the CPC are that Virinder Kumar Kaura''s application for eviction of his tenant Madan Lal was dismissed by the Rent Controller, Moga, on 17th January, 1977. When his appeal came up for hearing on 21st September, 1977, the attention of the Appellate Authority was drawn to the Full Bench decision of this Court in Banke Ram v. Shrimati Sarswati Devi 1967 R.C.R. 595, laying down that it is essential for the landlord to specifically plead all the ingredients in sub-clause (b) and (c) of paragraph 1 of section 13(3)(a) of the East Punjab Urban Rent Restriction Act in his eviction application Accordingly, the Division Bench decision of this Court in Krishan Lal Seth v. Shrimati Pritam Kumari (1961) 63 P.L.R. 865, was overruled. In the impugned order, the Appellate Authority observed that the instant ejectment petition might fail on account of the defect as the grounds supporting bona fide personal requirement of the landlord have not been mentioned therein. The Appellate Authority set aside the order of the Rent Controller and allowed the ejectment application to be dismissed as withdrawn with permission to file another on the same cause of action. Hence, this revision petition.

It has not been disputed before me that the Appellate Authority can have recourse to the provisions of order 23, rule 1(3), CPC which provides:--

Where the court is satisfied,--

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim.

Learned counsel for the tenant urged before me that the application in question did not suffer from any defect so as to attract the provisions of order 23, rule 1(3), Civil Procedure Code. Reliance was placed on Full Bench decision of the Bombay High Court in Ramrao Bhagwantrao Inamdar Vs. Babu Appanna Samage, . It was held therein that the expression ''formal defect,'' must be given a wide and liberal meaning and must be deemed to connote every kind of defect which does not affect the merit of the case whether that defect be fatal to suit or not. "Formal defect" includes misjoinder of parties or of the matter in suit, rejection of a material document for not having a proper stamp and the erroneous valuation of the subject matter of the suit". I find merit in the contention of the learned counsel for the tenant that failure to mention the essential ingredients of section 13(3) (a) of the Act cannot be said to be a formal defect that omission affects the merits of the case.

In the alternative learned counsel for the landlord was at pains to argue that it was a case of "sufficient grounds" justifying the impugned order. It was contended that the Full Bench decision was announced on 17th December, 1976. A month thereafter, the Rent Controller dismissed the application. During the pendency of the proceedings before the Rent Controller, the parties were not aware of the Full Bench decision as it was reported long after The application for eviction was drafted in accordance with the earlier view of this Court expressed in Krishan Lal Seth''s case (supra) Before the Appellate Authority, when the landlord was faced with the Full Bench decision, one course open to him was to pray an amendment of the application and opportunity to lead additional evidence. The remand of the case by it was contended to be not permissible. However, it could refer the case to the Rent Controller for recording evidence and to call for his report. It was further contended that the Appellate Authority instead passed the impugned order. Support was sought from a Division Bench decision in AIR 1946 429 (Lahore) , to the effect that the words "other sufficient grounds" are much wider in signification and can cover all those cases which appear to Court as affording such grounds. Lastly, the learned counsel urged that the discretion exercised by the Appellate Authority, in the peculiar facts and circumstances of this case be not interfered with. Learned counsel for the tenant was unable to make out how the Appellate Authority acted illegally or with material irregularity in passing the impugned order. It need hardly be said that after the Full Bench decision cited above, even at the revisional stage, permission to amend the pleadings have been liberally granted by this Court to the landlords, whereas in this case, the Appellate Authority allowed the landlord to withdraw the application and file a fresh one on the same cause of action. For the foregoing reasons I decline to interfere with the impugned order. The revision petition is, therefore, dismissed. The parties are left to bear their own costs.