Manisha Lalwani vs D.V. Paul

Alok Aradhe, J.—In this petition under Article 227 of the Constitution of India the petitioner has assailed the validity of the order dated 20-8-2013 by which the trial Court has partly rejected the application filed by the petitioner plaintiff under Order 16, Rule 2 of the Code of Civil Procedure. The facts, giving rise to filing of the writ petition, briefly stated, are that the petitioner filed the suit for eviction on the ground enumerated under section 12(1)(b), (c), (d), (e), (f) and (i) of the M.P. Accommodation Control Act, 1961 (in short ''the Act''). The petitioner has also prayed for grant of mesne profit. The respondent in the written statement denied the claim and in particular grounds enumerated under section 12(b) and (i) of the Act. The petitioner filed an application under Order 11, Rule 12 of the Code of Civil Procedure which was decided by the trial Court vide order dated 6-4-2014 by which the respondent was directed either to disclose the details of the accommodation acquired in Roshan Nagar, Rafi Ahmed Kidwai Ward or file an affidavit. In response to the aforesaid order, the respondent filed the affidavit. The petitioner filed an application under Order 7, Rule 14 to produce the record of the Municipal Corporation in respect of the aforesaid accommodation which was allowed by the trial Court.

Thereafter, the petitioner filed an application under Order 16, Rule 2 of the Code of Civil Procedure by which the petitioner wanted to examine the witnesses, namely, Income-tax Officer, Commissioner, Municipal Corporation, Katni, Smt. Shanta Paul and Branch Manager, Andhra Bank, Katni. The respondent filed reply to the aforesaid application and opposed the prayer. The trial Court vide order dated 20-8-2013 partly allowed the application preferred by the petitioner and permitted issuance of summons to the Commissioner, Municipal Corporation, Katni. In the aforesaid factual backdrop, the petitioner has approached this Court.

Learned counsel for the petitioner at the outset submitted that the petitioner has confined his challenge to the impugned order insofar as it rejects the prayer for summoning Smt. Shanta Paul and Branch Manager, Andhra Bank. It is further submitted that impugned order suffers from apparent error on the face of record inasmuch as the petitioner wanted to examine Smt. Shanta Paul in order to prove the grounds enumerated under sections 12(1)(b) and (i) of the Act. However, the trial Court rejected the aforesaid application on the ground that benami transaction is prohibited under the Benami Transactions (Prohibition) Act, 1988. It is also submitted that similarly the trial Court committed grave illegality in rejecting the prayer for summoning the Branch Manager, Andhra Bank on the ground that the plaintiff can approach the Rent Controlling Authority under section 10 of the Act for fixation of standard rent. It ought to have appreciated that the petitioner has not claimed standard rent but mesne profit. In support of his submissions, learned counsel for the petitioner has placed reliance on the decisions in Mange Ram Vs. Brij Mohan and Others, , Lalitha J. Rai Vs. Aithappa Rai, , Rehman Hussain Vs. Althaf Hussain and Another, , Municipal Corporation for Greater Bombay Vs. Lala Pancham of Bombay and Others, , Smt. Yasodamma and Another Vs. Inderchand Vimalchand Jain and Another, , Shyamacharan Raghubar Prasad Tiwari Vs. Sheojee Bhai Jairam Chattri and Another, , Padmawati v. Harijan Sewak Sangh and others, (2012) 6 SCC 460, Achutananda Sahoo Vs. Dhruba Ch. Sahoo and Others, , Jagdish Babu Raijaada Vs. Sanval Das Gupta, and V.K. Periasamy @ Perianna Gounder Vs. D. Rajan, .

On the other hand, learned counsel for the respondent submitted that the statute in question, namely, the Act provides remedy to the petitioner for fixation of standard rent and, therefore, the trial Court has rightly relegated the petitioner to avail the remedy under section 10 of the Act. It is further submitted that since the petitioner has already produced the document to show that the wife of the respondent is the owner of the accommodation in question, therefore, there is no necessity to call her as witness. It is also submitted that the impugned order neither suffers from any error apparent on face of record nor any illegality therefore, this Court should not interfere in exercise of jurisdiction under Article 227 of the Constitution of India. In support of his submissions, learned counsel for the respondent has placed reliance on the decision in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, . It is further submitted that number of witnesses who are to be examined should not be left to the whims and caprice of the parties to the suit. In support of the aforesaid submission, learned counsel for the respondent has placed reliance on the decision in Yashpal Sawhney Vs. Gandotra Traders and Others, , Sri Aurobindo Ashram Trust Pondicherry and another Vs. Kamal Dora, and N. Yovas and Another Vs. Immanueal Jose and Others, .

I have considered the respective submissions made by learned counsel for the parties. In Shalini Shyam Shetty (supra) the Supreme Court after long deliberation on the issue with regard to scope and ambit of power under Article 227 of the Constitution of India and after taking note of decisions in the field has formulated the legal principles mentioned in paragraph 40 of the judgment. It has inter alia been held that the High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

In Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd., , the Supreme Court while taking note of the decision in Shyam Charan Vs. Sheoji Bhai and Another, has upheld the principle that the tenant continuing in occupation of the tenancy premises after the termination of tenancy is an unauthorised and wrongful occupant and a decree for damages or mesne profits can be passed for the period of such occupation, till the date he delivers the vacant possession to the landlord. It is well settled legal position that initial onus of proving unlawful subletting in the first instance lies upon the plaintiff. Sub-tenancy can hardly be proved by direct evidence. All that the plaintiff can do is to be placed on record certain circumstances from which an inference has to be drawn. When such circumstances are proved, the burden placed on the plaintiff is discharged and the onus shifts on the defendant. [See: Narayan Ratan Vs. Indian Mill Stores,

In the instant case, in. paragraph 4 of the application under Order 16, Rule 2 of the Code of Civil Procedure, the plaintiff had stated that presence of Mrs. Shanta Paul as a witness is necessary to prove the fact that the defendant had sublet the premises and has acquired the accommodation at Rafee Ahmad Kidwai Ward. In paragraph 5 of the application, it is stated that presence of the Branch Manager of Andhra Bank as witness is necessary for proving the prevalent market rate of the properties in the locality.

The trial Court has rejected the application preferred by the petitioner on the ground that under section 10 of the Act, the petitioner has remedy to approach Rent Controlling Authority for fixation of standard rent and summon to Smt. Shanta Paul has been refused on the ground that transaction is prohibited under the Benami Transactions (Prohibition) Act, 1988. By summoning Mrs. Shanta Paul, the petitioner wanted to discharge initial burden with regard to subletting of the accommodation which initially lies on him. However, the trial Court refused to summon Mrs. Shanta Paul simply on the ground that transaction in question is prohibited under the Benami Transactions (Prohibition) Act, 1988. The trial Court has decided the application without perusal of the grounds mentioned in the application. In the instant case, the petitioner is claiming mesne profit and, therefore, in order to prove the prevalent market rate of the properties in the locality, summons to Branch Manager, Andhra Bank, Katni ought to have been issued by the trial Court as the petitioner is entitled to mesne profits in view of law laid down in Atma Ram Properties (P) Ltd. (supra). The trial Court has lost the sight of the fact that section 10 of the Act has no application to the facts of the case as the petitioner is not claiming standard rent. The aforesaid approach of the trial Court cannot be termed, but perverse. Thus, the impugned order suffers not only from non-application of mind but error apparent on face of the record as well. In view of the preceding analysis, the impugned order dated 20-8-2013 insofar as it pertains to rejection of prayer of the petitioner for issuance of summons to Branch Manager, Andhra Bank, Katni and Smt. Shanta Paul, is hereby quashed. The trial Court is directed to issue summons to the aforesaid witnesses. In the result, the writ petition is allowed. However, there shall be no order as to costs.