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2006 Supreme(MP) 695
2006(3) JLJ 343
W.A. Shah, J.
Shyamsingh v. Mulyabai
Second Appeal No. 1184 of 2005 : against the judgment and decree of
II Additional District Judge, Ujjain, passed in Civil Appeal
No.41 -A of 2005 affirming the judgment and decree of
I Civil Judge, Class II, Ujjain, passed in Civil Suit
No. 167-A of 2004; Decided on 17.5.2006.
Pratap Mehta for appellant;
S.K. Shastri for respondent.
Headnote:Accommodation Control Act, 1961 (M.P.) -- Ss. 23-J, 23-A, 12(1)(e), 11A and 45 -- divorced lady -- included in the category of special landlords enumerated under S.23-J -- suit for eviction by her in civil Court on ground of bona fide need -- not maintainable by virtue of Ss.11-A and 45 -- she will have to file application under S.23-A before Rent Controlling Authority.
The respondent-plaintiff filed a suit against the appellant-defendant on 9.11.1998 for arrears of rent, eviction and mesne profits relating to tenanted premises. Decree for eviction was prayed on the grounds as envisaged under sections 12(1)(a), (c) and (e) of the Act. The plaintiff also specifically pleaded that she was a divorcee as her husband had divorced her according to chhod chhutti mode prevalent in their society by custom. The defendant resisted the suit. It was also stated by him that in view of plaintiff‘s special category of divorced wife landlord within the meaning of clause (iii) of section 23-J of the Act. Civil Court‘s jurisdiction to entertain the suit stood barred under the provisions of section 11-A read with section 45 of the Act. [Para 2
Held : It is clear that both the learned Courts below committed an error in law when they held that they had the jurisdiction to deal with the ground of eviction under section 12(1)(e) of the Act on the prosecution thereto before them by the plaintiffd`respondent though she was a divorced wife landlord as defined under section 23-J of the Act. The width of their jurisdiction stood constricted. Therefore, the impugned judgment and decree of the learned lower appellate Court confirming the judgment and decree passed by the learned trial Court deserve to be set aside allowing this appeal. 2003 (1) JLJ 85 (SC) followed. 2006(II) MPWN 28 and 1998(1) JLJ 311 (FB) relied on. [Para 8
LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 23&¥] 23&d] 12¼1½¼³½] 11&d rFkk 45 && fofPNUu fookg efgyk && /kkjk 23&¥ ds v/khu izxf.kr fo‘ks"k Hkw&Lokeh dh izoxZ esa lfEefyr gS && mlds }kjk flfoy U;k;ky; esa okLrfod vko‘;drk ds vk/kkj ij csn[kyh ds fy, okn && /kkjk 11&d rFkk 45 ds izHkkoIrsxzkg~; ugha gS && mls /kkjk 23&d ds v/khu HkkM+k fu;a=d izkf/kdkjh ds le{k vkosnu Qkby djuk gksxkA
izR;FkhZ&oknh }kjk 9-11-1998 dks vihykFkhZ&izfroknh ds fo:) HkkM+s ij fn, x, ifjlj ls lacaf/kr HkkM+s dk cdk;k] csn[kyh rFkk var%dkyhu ykHk ds fy, okn Qkby fd;k x;kA vf/kfu;e dh /kkjk 12¼1½¼d½] ¼?k½ ¼³½ ds v/khu ;Fkk ifjdfYir vk/kkjksa ij csn[kyh dh fMØh dh izkFkZuk dh xbZ FkhA oknh us fofufnZ"Vr% vfHkopfur fd;k gS fd og fofNUu&fookg Fkh D;ksafd mlds ifr us muds lekt esa NksM+ NqV~Vh :f<+ }kjk izpfyr jhfr ls fookg&foPNsn fd;k FkkA ifroknh us okn dk izfrjks/k fd;kA mlds ¼izfroknh½ }kjk ;g Hkh dgk x;k fd oknh dh vf/kfu;e dh /kkjk 23&¥ ds [kaM ¼rhu½ ds vFkkZarxZr fofNUu&fookg Hkw&Lokeh ds fo‘ks"k izoxZ dks ns[krs gq,] vf/kfu;e dh /kkjk 45 ds lkFk ifBr /kkjk 11&d ds mica/kksa ds v/khu flfoy U;k;ky; dh okn xzg.k djus dh vf/kdkfjrk oftZr FkhA ¼iSjk 2
vfHkfu/kkZfjr % ;g Li"V gS fd fupys nksuksa fo}ku U;k;ky; us fof/k dh xyrh dh tc mUgksaus ;g vfHkfu/kkZfjr fd;k fd mUgsa vius le{k oknh&izRFkhZ }kjk vf/kfu;e dh /kkjk 12¼1½¼³½ ds v/khu csn[kyh ds vk/kkj ij vfHk;kstu ijj fopkj djus dh vf/kdkfjrk Fkh Hkys gh og vf/kfu;e dh /kkjk 23&¥ ds v/khu ;FkkifjHkkf"kr fofPNUu&fookg iRuh Hkw&Lokeh FkhA mudh vf/kdkfjrk dk foLrk ladqfpr FkkA vr%] bl vihy dks vuqKkr djrs gq, fo}ku fopkj.k U;k;ky; }kkjk ikfjr fu.kZ; rFkk fMØh dks iq"V djus okys fo}ku fupys vihy U;k;ky; dk vk{ksfir fu.kZ; rFkk fMØh vikLr fd, tkus ;ksX; gSA 2003¼1½ ts ,y ts 85 ¼,l lh½ vuqlfjrA 2006¼2½ e-iz- ohDyh uksV~l 28 rFkk 1998¼1½ ts ,y ts 311 ¼iw.kZ U;k;ihB½ voyafcrA ¼iSjk 18
1. This is defendant's second appeal under section 100 of the Code of Civil Procedure. It is directed against the judgment and decree dated 9.5.2005 passed by learned Second Additional District Judge, Ujjain, in Civil Appeal No. 41-A/2005 confirming the judgment and decree dated 20.1.2005 passed by learned First Civil Judge, Class II, Ujjain, in Civil Suit No. 167-A/2004 discarding other matters and directing eviction of the defendant from the tenanted premises specified in plaint, on the ground of bona fide requirement under section 12(1)(e) of the M.P. Accommodation Control Act, 1961 ("Act" hereafter).
2. The respondent-plaintiff filed a suit against the appellant-defendant on 9.11.1998 for arrears of rent, eviction and mesne profits relating to tenanted premises. Decree for eviction was prayed on the grounds as envisaged under sections 12(1)(a), (c) and (e) of the Act. The plaintiff also specifically pleaded that she was a divorcee as her husband had divorced her according to chhod chhutti mode prevalent in their society by custom. The defendant resisted the suit. It was also stated by him that in view of plaintiff's special category of divorced wife landlord within the meaning of clause (iii) of section 23-J of the Act, Civil Court's jurisdiction to entertain the suit stood barred under the provisions of section 11-A read with section 45 of the Act. The learned trial Court framed issues, received evidence and at the conclusion reached the finding that the jurisdiction of the Civil Court was not barred and ground of eviction only under section 12(1)(e) of the Act could be proved. Accordingly decree for eviction followed. The defendant took the matter to appeal under section 96 of the Code of Civil Procedure. The learned lower appellate Court confirming the decree passed by the trial Court, dismissed it. Hence this second appeal. It has been admitted for final hearing on the following substantial question of law:
"Whether both the Courts have committed an error of law by holding that the plaintiff-respondent can prosecute the eviction proceedings before the Civil Court even though she comes within the definition of section 23-J of the M.P. Accommodation Control Act?"
3. Learned counsel for the appellant arguing in support of the appeal contended that the learned Courts below failed to appreciate relevant provisions of law and were thus in error in arrogating to themselves the jurisdiction which they did not possess. In his support he relied upon Dhannalal v. Kalawatibai and others [2003(1) JLJ 85 (SC)] and Nandlal v. Mangibai [2006(II) MPWN 28=2006(1) MPLJ 231]. The learned counsel for the respondent in his anxiety to get the impugned decree retained, in counter argument submitted that the status of the plaintiff being a special landlord has wrongly been decided by the Courts below and she infact is an ordinary landlord. He submitted that though cross-objections has not been filed by the respondent-plaintiff yet in the circumstances in view of the provisions of Order XLI, Rule 33 of the Code of Civil Procedure such an objection can be raised on behalf of the respondent in the fashion chosen by him. I may mention that in the plaint, the pleading of the plaintiff-respondent is there specifically mentioning her as a divorced wife landlord and it has been followed by her relevant evidence, therefore, she cannot change her position and she is estopped from doing so. The learned counsel for the respondent in the alternative supported the impugned judgment relying upon Ashok Kumar v. Baboolal and another [1998(1) JLJ 311 (FB)].
4. Here it is proper to have a look of the relevant provisions of the Act. They are as under:
(Chapter III)
Section 11A of the M.P. Accommodation Control Act, 1961
"11A. Certain provisions not to apply to certain categories of landlords. -- The provisions of this Chapter so far as they relate to matter specially provided in Chapter III-A shall not apply to the landlord defined in section 23-J."
(Chapter III)
