Saroj Thareja and another vs Tarabai and others

Dr. T.N. Singh, J.

A fervent appeal is made by petitioners'' counsel for deferring healing and decision in this matter. However, I see no reason to oblige counsel to make his client happy only abdicating my judicial duties and shutting my eyes to the background facts of the case.

Between 15-4-1987 and this date, this matter came up before me on many occasions and hearing was deferred on the prayer of counsel that parties may be able to settle matter amicably. Indeed, on the last date, namely, 3-7-1987, non-applicant No. 1 was not present, but the applicant No. 1 was present and on that ground only, the matter was adjourned till today with the hope that when both sides are present, they would file joint petition recording the compromise, as it was submitted to this Court on 15-4-1987. Today, both parties are present --applicant No. 1 and also non-applicant No. 1. Yet, they failed to reach a compromise and settlement and the fact is also that this application u/s 23E of the Madhya Pradesh Accommodation Control Act, 1961, for short, the ''Act'', is pending decision in this Court for 1 1/2years.

Shri R.D. Jain, who appears for the non-applicants, strongly urged that the instant case is fully covered by decision of this Court rendered by me on 5-9-1986 in Civil Revision No. 72 of 1986 (Ghanshyamdas Gupta vs. Shivaldas). Shri Chaturvedi, who appears for the applicants, on the other hand, contests his position and has tried to distinguish the decision. Councel has also pressed in service a reported decision of a learned Single Judge of this Court in the case of Smt. Sushiladevi vs. Kedarnath Gupta, 1987 MPRCJ 193. The only fact which has to be stated in this connection is that decision in Sushiladevi (supra) was rendered on 17-9-1986 after the decision in Ghanshyamdas Gupta''s case (supra), but in that case, the attention of his Lordship was not drawn to the decision in Ghanshyamdas Gupta''s case (supra) which, of course, had remained unreported till now.

It is true as Shri Chaturvedi contends, in Ghanshyamdas Gupta (supra), the main question involved for decision was that of plurality of ownership, while the fact of the matter is also that in the same decision, I have observed that Section 23J has to be read along with Section 23A, because it is the landlord of the class envisaged u/s 23J who is enabled u/s 23A to make the application for eviction of the tenant and, therefore, his entitlement to evict would be evidently determined not only by Section 23J, but also by the terms of Section 23A. In disposing of finally an application u/s 23A, the Rent Controlling Authority, for short, the ''Authority'', is required to consider the provisions thereof. In the instant case, the fact which is not disputed is that non-applicant No. 1 is a widow and she is indisputably a landlady of the class contemplated u/s 23J(iii). Section 23A(a) authorises the Authority to make an order directing the tenant to put such a landlady in possession of the accommodation "let out for residential purpose and is required bona fide by the landlord for occupation as residence of the landlord himself or for any member of his family." The plurality of need is very much clearly under-written in the provisions of Section 23A(a) and, therefore, I do not find any substance in the contention of Shri Chaturvedi that the decision in Ghanshyamdas Guptd (supra) has no relevance to the case or that the view taken therein is not a reasonable or plausible view. What only remains to be stated is that Laltaprasad Shivcharanlal Vs. Ramcharan Hiralal Vijayvargiya, was the decision which provided inspiration for the view taken in Ghanshyamdas Gupta (supra), concerning plurality of need, not merely plurality of ownership.

In Sushiladevi (supra), the widow had filed an application u/s 23A on the ground of bona fide need of her major son only and it was held that the proper forum for such a prayer was not by way of an application before the Authority, but Civil Court wherein a suit had to be instituted u/s 12 of the Act. Saying that, I do not stop still. But, I would like to add a word to make clear the position that I do not feel inclined to subscribe further to the view that even a widow, if she had made an, application u/s 23A for her bona fide need as also of her son, would not be entitled to pursue her application before the Authority though there is an obiter to the contrary in para 9 of Sushiladevi (supra), indeed that matter had not come up for decision there. I have made this position clear because of what I have held in Lalta Prasad (supra) on the plurality of the need, which was not cited in Sushiladevi.

Another contention has just been raised by Shri Chaturvedi in course of his argument when I have almost finished dictating my judgment. Counsel has contended that the instant application of the non-applicant u/s 23A was barred by Order 23 Rule 1(2), Civil Procedure Code, because leave of the Court was not obtained when the earlier suit instituted by the same non-applicants was withdrawn by them. This contention must be repelled for two reasons. Firstly, factually the position is not correct. This is manifested by the order dated 5-12-1983 passed in Civil Suit No. 9-A of 1983, which is on record and my attention thereto is drawn by Shri R.D. Jain. Therein, the Court, in categorical terms, granted leave to the plaintiff to withdraw the suit so that die could file application u/s 23A as she had become entitled to invoke the special law and the special forum contemplated therein. Secondly, I do not read anything in the provisions of special law itself manifesting such a bar. Indeed, in the Act, Section 23J and 23A, the new provisions having been enacted, the non-applicants, even if they had not obtained leave under Order 23 Rule 2, Civil Procedure Code, could have prosecuted their application u/s 23 of the Act to enforce the right granted to them thereunder by the special law.

I am still left to deal with another contention raised now by Shri Chaturvedi. Counsel contends that the Authority did not give reasonable opportunity to the petitioners to adduce rebuttal evidence in terms of Section 23D(3) of the Act. However, he concedes that the first petitioner examined herself and also another witness. His only grievance is that she ought to have been allowed opportunity liberally to examine as many witnesses as she would have liked to produce only because process-fee was paid. To this contention, the short answer is that, a "summary enquiry" is contemplated under the provisions of Section 23A which saddles duty on parties to ensure expeditious disposal of the application made u/s 23A. No right accrues to any party to summon witnesses by filing process-fees only. Indeed, for adducing rebuttal evidence in terms of Section 23D(3), the legislature has placed burden on the tenant to do so. It was the duty of the tenant to keep his witnesses ready and not to prolong proceeding to defeat die mandate of Section 23D(1) wherein, a time limit of six months is statutorily contemplated for disposal of applications made u/s 23A. A protracted litigation giving long hands to parties is not contemplated under the Act. I must now close as nothing more has been submitted by Shri Chaturvedi. All his contentions have been duly dealt with and disposed of. But, no relief, unfortunately can be given to the petitioner for reasons alluded.

In the result, the petition fails and is dismissed. The impugned order is confirmed.