Tilakraj Sharma vs Shyamabai Tiwari

S.S. Jha, J.

This revision has been filed against the order of eviction and refusal to grant leave to defend passed by the Rent Controlling Authority.

Brief facts of the case are as follows : Landlady Shyamabai Tiwari filed an application for ejectment u/s 23-A of the M. P. Accommodation Control Act, 1961 on 24-7-1991. Notices were issued to the tenant-applicant and the tenant applicant entered his appearance through his counsel on 13-8-1991 and sought time to file reply. The case continued thereafter on different dates. On 11-12-1991, an objection was raised by the tenant applicant before the Rent Controlling Authority that summons have not been served upon him as provided u/s 23-B of the Act. This objection was decided on 27-3-1992 and the Rent Controlling Authority directed summons to be issued to the tenant as provided u/s 23-B of the Act. The summons as required under the law were served upon the tenant on 22-4-1992. The case was fixed for 28-4-1992. On that date, the counsel for the tenant-applicant sought time to file reply. The case was thereafter adjourned to 6-5-1992, 13-5-1992 and 19-5-1992. On 19-5-1992, an application for leave to defend as provided u/s 23-C was filed by the tenant. Admittedly, this application was not filed within 15 days from the date of receipt of summons by the tenant on 22-4-1994. When objection was raised that the application u/s 23-C for leave to defend was barred by limitation, an application u/s 23-C read with section 5 of the Limitation Act and section 151, CPC was filed by the tenant on 30th March, 1992. The application did not disclose any sufficient cause as provided in the proviso to section 23-C of the Act. It was stated in the application that the mistakes have been committed by the landlady in the proceedings which shows that her intentions are mala fide. It was further stated that looking to the circumstances of the case, and mala fides of the landlady, the delay should be condoned.

Shri Manindra Shrivastava, learned counsel for the applicant, vehemently urged that the notice u/s 23-B was not served and in the absence of proper service the delay ought to have been condoned. He also submitted that the Rent Controlling Authority fell in error in allowing the application for ejectment and that it did not proceed according to law. He further submitted that even after refusing to grant leave to defend, the Rent Controlling Authority ought to have satisfied that the need of the landlady is bona fide. On the other hand, Shri V P. Verma, counsel appearing for the landlady - non-applicant contended that if application for leave to defend is not filed or leave to defend is not granted, then the Rent Controlling Authority has power to pass order of eviction of tenant from the accommodation as provided u/s 23-C of the Act.

Now, Chapter IIIA of the M. P. Accommodation Control Act has been incorporated for the benefit of the special category of landlords defined u/s 23-J of the Act. A special provision for eviction of tenant on the ground u/s 23-A has been made. This provision has been inserted with an intention of giving speedy remedy to the landlords covered under Chapter IIIA of the Act.

The learned counsel for the applicant relied upon the decision in Vishwanath v. Virendra Singh, 1987 MPLJ 91 :1987 MPRCJ 70 and argued that the delay in filing the application for leave to defend ought to have been condoned on the principles laid down in the said judgment. This judgment is of no assistance to the applicant. In the said case, the service of summons was not effected properly, therefore, the Court held that the delay deserved to be condoned as the service was made by affixture without enquiry whether the tenant was in the town or not. The contention that the delay should be condoned liberally if there is no mala fide on the part of the tenant cannot be accepted in the present case. Going through the record, it is very clear that the applicant had put in appearance through counsel from 13-8-1991 and by order dated 27-3-1992 the Rent Controlling Authority had also given him opportunity of filing application for leave to defend after serving notice as provided u/s 23-B of the Act. Though the applicant had received summons u/s 23-B, he has not cared to file application for leave to defend within 15 days. The contention of the learned counsellor the tenant-applicant cannot be accepted that since the case was fixed for 19-5-1992 the applicant had no opportunity of filing application for leave to defend. This contention is contrary to record. The order-sheet discloses that the case was fixed for 28-4-1992, 6-5-1992, 13-5-1992 and 19-5-1992. The application for condonation of delay was decided on the question of sufficient cause and what was the sufficient cause which prevented the applicant from filing the application for leave to defend has not been mentioned. The application for condonation of delay is vague and general in nature. The application is also not supported by an affidavit. The conduct of the applicant does not show any bona fides. The Rent Controlling Authority was correct in not condoning the delay in filing the application u/s 23-C(1) and rightly rejected the application.

The next contention of the applicant is that the Rent Controlling Authority ought to have passed the order of eviction after satisfying itself about the need of the landlady. Learned counsel for the applicant has relied upon the decision in Madan Shah v. Laleshwar Choube and another, AIR 1994 Patna 149 where the Court has considered the question of ''deemed admission'' and held that deemed admission may not disclose cause of action and even if the Court finds that the admitted facts prove the reasonable and bona fide need of the plaintiff and he is entitled to a decree for eviction on the said grounds, it cannot pass an order of eviction unless he considers the question of partial eviction as required by proviso to section 11(1)(c) of Bihar Buildings (Lease, Rent and Eviction) Control Act. The provisions of section 11(1)(c) of the Bihar Act are not analogous to those of section 23 of the M. P. Accommodation Control Act. Section 23-C(3) provides that in respect of application by a landlord it shall be presumed, unless contrary is proved, that the requirement by the landlord is bona fide. Section 23-C(1) provides that when leave is refused the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant. The Rent Controlling Authority shall in such a case pass an order of eviction of tenant from the accommodation. In view of the provisions of section 23-C, the law laid down in Madan Shah''s case (supra) is not applicable to the instant case.

The learned counsel for the applicant also relied upon the judgment of this Court in Abdul Samad v. Mangilal, 1988 MPRCJ 45. The facts of the said case are not applicable to the present case. In the said case, application for leave to defend was filed but no permission was granted and the Rent Controlling Authority passed an order of eviction without applying its mind on the question of grant of leave to defend. Thus, the facts of the said case are not applicable to the instant case. The counsel for the applicant also relied on the decision in Gopal Shankar Sahai v. Thakur Sahab Singh, 1986 MPLJ163. In this case, affidavit was not filed along with the application which was mere irregularity and the defect was curable. The facts of the said case are also not applicable to the instant case.

As already held earlier, leave to defend was rightly refused by the Rent Controlling Authority as no sufficient cause was shown by the tenant for delay in filing the application and since leave was refused, the R.C.A. had power to pass an order of eviction of the tenant u/s 23-C(1) and as such the order of ejectment was rightly passed. u/s 23-C(3) of the Act there is presumption as to bona fide need of the landlord unless contrary is proved. There is no infirmity in the order passed by the Rent Controlling Authority.

For the reasons stated above, the revision is devoid of merits and deserves to be dismissed. It is accordingly dismissed with costs. Counsel''s fee Rs. 200/-, if certified.