Rayees Ahmed vs Smt. Iddo Bee

K.K. Trivedi, J.—This revision is directed against the order dated 22-11-2010 passed by the XII Civil Judge Class-1, Bhopal in Regular Civil Suit No. 25-A/2008, by which the objection filed by the petitioner/defendant with respect to maintainability of the suit has been dismissed. The facts giving rise to this revision are that the respondent has preferred a suit against the petitioner for his eviction from the suit accommodation, a shop, on the various grounds enumerated u/s 12(1) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as ''Act''). The respondent has claimed arrears of rent, eviction of the petitioner from the suit shop, mesne profits etc. The petitioner has contested the suit on the ground that the respondent is not entitled to claim such decree of eviction. She is not in bonafide need of the shop. Certain shops were got vacated but the same are being let out after raising the rent. Need indicated in the suit is not bonafide and the suit is liable to be dismissed. The petitioner has also filed an application under Order 7 Rule 11 of the CPC for dismissal of the suit on the ground that the respondent being a widow, is a specified landlord defined u/s 23J of the Act and is required to file an application u/s 23A of the Act for eviction of the petitioner in case she is in bonafide need of the demised premises. It is contended that since there is a bar provided u/s 45 of the Act with respect to the jurisdiction of the Civil Court, such a suit as has been filed, is not maintainable and the composite suit is liable to be dismissed. However, the Court below has rejected such an application of the petitioner by the impugned order and, therefore, this revision is required to be filed.

Learned Counsel for the petitioner has vehemently contended that Section 45 of the Act makes it clear that the jurisdiction of the Civil Court is barred in respect of such a suit, which could be filed u/s 23A of the Act before the Rent Controlling Authority. Reading the provisions of Section 23-J of the Act, it is contended by learned Counsel for the petitioner that since the respondent is a widow lady, she is a specified landlord and, therefore, she is required to approach the Rent Controlling Authority for seeking eviction of the petitioner under the provisions of Section 23-A of the Act, where it is specifically provided that the eviction of the tenant on the ground of bonafide requirement can be directed by the Rent Controlling Authority. It is contended that such a composite suit is not maintainable before the Civil Court and only for the purposes of arrears of rent, the suit could have been filed before the Civil Court. As such, the suit is not maintainable and is liable to be dismissed.

Per contra, it is contended by learned Counsel for the respondent that if such a composite suit is filed, there would not be any absolute bar u/s 45 of the Act with respect to the jurisdiction of the Civil Court and, therefore, the Civil Court will have the jurisdiction to entertain the suit. Since this has been considered by a Full Bench of this Court and this aspect has already been decided, the rejection of such an application of the petitioner is justified. It is contended that the revision has no force and the same is liable to be dismissed.

Heard learned Counsel for the parties at length and perused the record.

Undisputedly, the respondent has said that she is in bonafide need of the demised premises for the purposes of starting business of her adult son, who is unemployed. It is also contended by the respondent that she has two other shops on the ground floor, for which the proceedings for eviction of tenants have been initiated for other two adult sons. But in the plaint, she has never claimed that she is a specified landlord and is, thus, entitled to get a decree under the special provisions of Section 23-A of the Act. If that is the situation, whether could it be said that such a suit was not maintainable before the Civil Court because of the bar of jurisdiction created u/s 45 of the Act. Learned Counsel for the petitioner has put his reliance in the case of Prahlad and others Vs. Smt. Kalabatibai, Indian Law Reports 2002 MP 937. It is contended that the law is well settled in this respect that such a composite suit is not maintainable before the Civil Court. Further, relying on the decision in the case of Nandlal Vs. Mangibai, and in case of Shyam Singh Thakur Vs. Sushri Mulyabai, learned Counsel for the petitioner has contended that in view of the well settled position of law, such a composite suit at least for eviction of the petitioner on the grounds of jurisdiction of the Civil Court was barred u/s 45 of the Act and the suit was liable to be dismissed on this ground.

It is not in dispute that such a composite suit was filed. It is also not in dispute that the respondent has not claimed her to be specified landlord as defined u/s 23-J of the Act. The Full Bench of this Court in case of Ashok Kumar Vs. Baboolal and Another, has considered this aspect and has dealt with such a situation. The Full Bench has categorically held that there is no prohibition specifically prescribed u/s 45 of the Act prohibiting any landlord u/s 23-J of the Act from seeking a remedy before the Civil Court. For the better appreciation of the interpretation of the provisions of Section 45 of the Act as done by the Full Bench of this Court, it would be appropriate to refer the findings recorded in Para 5 of the report, which reads thus:--

We have bestowed our best of consideration to the interpretation of Section 11A and we are of the opinion that the provision of Chapter III will not apply to Chapter III-A and not vice-versa. The learned Single Judge has only read it to mean that if the landlords defined in Section 23-J seek a remedy of eviction of the tenant then they have only one forum and they cannot take the benefit of going to Civil Court along with other ground, with great respect, is not correct. In fact, this is not the intention of Section 11-A. If any landlord wants to get a benefit of summary proceedings of the tenant, who is a landlord defined in Section 23-J, then he can immediately invoke the remedy before the Rent Controlling Authority. But, if he does not want to invoke the benefit of that summary remedy then there is no prohibition for him to go to a Civil Court and seek remedy of eviction of the tenant on the basis of reasonable bona fide requirement or on other grounds mentioned in Section 12 of the Act. Section 45 does not prohibit the landlord defined in Section 23-J from seeking a remedy before the Civil Court. Section 45 only says that no Civil Court shall entertain any suit or proceeding in so far as it relates to fixation of standard rent in relation to any accommodation to which this Act applies or to any other matter which the Rent Controlling Authority shall be granted. A close reading of this section means that so far as the matter relates to fixation of rent in relation to the accommodation concerned, the Rent Controlling Authority will have the jurisdiction to decide the matter and for any other matter, which the Rent Controlling Authority is empowered by or under this Act to decide, no injunction in respect of any action taken or to be taken by the Rent Controlling Authority shall be granted by any Civil Court or other authority. A simple meaning of this is that if any matter in which suit has been filed by the landlord as defined in Section 23-J, for eviction of the tenant on a reasonable bonafide requirement, then to the extent, the jurisdiction of the Civil Court is barred. But, if any landlord defined in Section 23-J, files suit before the Civil Court raising a ground of reasonable bonafide requirement or on other grounds mentioned in Section 12 of the Act, then the Civil Court can decide the matter and there is no prohibition. If the landlord defined in Section 23-J files a simpliciter suit on the ground of reasonable bonafide necessity before the Rent Controlling Authority, then in that case, the Civil Court will have no jurisdiction whatsoever. But to interpret Section 45 to mean that the landlord defined in Section 23-J will have no right to approach the Civil Court for eviction of the tenant on the ground of a reasonable bonafide requirement, will not be a correct interpretation of Section 45. In fact, as already mentioned above, Section 11-A is a restrictive provision that Chapter III will not be applicable to the landlords defined in Section 23-J under Chapter III-A. But, if the landlord does not want to avail the benefit of Chapter III-A and wants to litigate the matter before the Civil Court as ordinary landlord then Section 45 of the Act will not come in the way. In fact, the benefit has been specifically provided to the landlord defined in Section 23-J whereby he does not cease to be ordinary landlord. The landlord can avail the expeditious remedy under Chapter III-A and if they do not want to avail the remedy under Chapter III-A and wants to litigate as an ordinary citizen, then it is their choice and they cannot be restricted to one particular forum. Alternative Forum has been created for the benefit of these persons and that does not exclude the Ordinary Civil Forum, if they do not want to avail the benefit of a privilege, which has been created for them under the Act. Therefore, when Chapter III-A is specially inserted for the benefit of the landlords defined in Section 23-J and to read it that excludes other Civil Forum with reference to Section 45 will be frustrating the very purpose of the Act. Neither the Full Bench in the case of Paraschand (supra) nor the Division Bench in the case of Bernard (supra) has anywhere laid down that the jurisdiction of the Civil Court is barred for the landlords defined in Section 23-J of the Act. The view taken by the learned Single Judge that since a special forum has been created under Chapter III-A; therefore, reading with Section 45, the landlords defined in Section 23-J has to resort to that particular forum and they cannot have a remedy before the Civil Court, with great respect, it is not the correct view taken by the learned Single Judge.

Another aspect is that the Apex Court also in the case of Ashok Kumar Gupta Vs. Vijay Kumar Agrawal, has considered these aspects and as has been referred in some of the decisions given thereafter by this Court, the provisions of Section 45 of the Act have been interpreted. The Apex Court has also said that there is no absolute bar that a specified landlord as defined u/s 23-J is prohibited to approach the Civil Court for claiming any relief whatsoever against the tenant. For the said purposes, the specific provision made u/s 11-A of the Act have also been noted. From the enunciation of law as laid down by the Full Bench of this Court and by the Apex Court as also other Co-ordinate Bench, it is clear that the plaintiff is the dominus litis and the plaintiff has a right to choose the forum, if there is no specific prohibition of the jurisdiction of the Civil Court. As has been pointed out herein above, the respondent has filed the suit not only for bonafide need of shop for establishing the business of her son but she has also categorically said that the petitioner was a defaulter, was not making payment of rent regularly. He has sublet the demise premises to somebody else without the consent of the respondent. In response to the notice issued by the respondent, the petitioner has denied the ownership of the respondent over the suit shop and, therefore, the decree of eviction is required to be granted as provided in different sub-clauses of sub-section (1) of Section 12 of the Act. If that is the claim made, how could it be said that such a suit is not maintainable before the Civil Court and the same is liable to be dismissed, as per the bar prescribed u/s 45 of the Act.

This being so, the order passed by the Court below rejecting the application of the petitioner under Order 7 Rule 11 of the CPC cannot be said to be beyond the jurisdiction or authority of the Court below. If the petitioner is of the view that only with respect to the claim made for grant of decree for eviction on the ground of bonafide need is not maintainable, to that extent, the Civil Court is required to examine the bar of jurisdiction created u/s 45 of the Act but for the rest of the claim, the Civil Court has the jurisdiction and, therefore, the suit is maintainable. In view of the foregoing discussion, there is no merit in this revision and the same deserves to be and is hereby dismissed. There shall be no order as to cost.