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2008(1) JLJ 117
S.S. Jha and S.A. Naqvi, JJ.
Paramjeet Kaur Samba (Smt.) v. Smt. Jasbir Kaur Wadhwa
Civil Revision No. 142 of 2004 (Jabalpur): on reference by Single Judge;
Decided on 12.9.2007.
Question involved in this case is that after grant of leave whether defendant can be permitted to file written statement or application for grant of leave supported by the affidavit is sufficient and no further opportunity to file written statement should be granted? [Para 2
Held: Under section 23-D (3) there is a presumption of bona fide need in favour of the landlord. The presumption is rebut-able, therefore, after grant of leave to defend, Rent Controlling Authority shall proceed to decide the bona fide need of the landlord and grounds on which leave to defend is granted. He is not required to decide anything else except the bona fide need. Thus, on plain reading of section 23-D the language is clear and simple and there is no provision for filing written statement by the tenant after leave to defend is granted to him. The grounds on which tenant is permitted to defend is to be considered and decided by the Rent Controlling Authority under the scheme of Chapter III-A and he is not required to decide any other dispute.
Thus, the question referred is answered as under:
"Under the scheme of Chapter III-A and the procedure laid down under section 23-D of the Act there is no provision for granting time to the tenant to file written statement after grant of leave to defend. The Rent Controlling Authority is required to proceed with the application for eviction and decide the application after considering the grounds on which leave to defend is granted to the tenant after recording evidence as provided under Order XVIII rule 13 of the Code" 1987 JLJ 397 overruled in 1995 JLJ 272. 2003(1) JLJ 85 (SC) followed. [Paras 19 & 20
LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 23&?k] 23&x rFkk 23&d && flfoy izfØ;k lafgrk] 1908 && vk-8 fu-1 rFkk vk-18 fu-13 && /kkjk 23&d ds v/khu csn[kyh ds fy, vkosnu && izfrj{kk dh btktr iznÙk && HkkM+k fu;a=d izkf/kdkjh }kjk rRdky /kkjk 23&?k ds v/khu fofgr izfØ;k vuqlfjr dh tkuk gksrh gS && fyf[kr mÙkj Qkby fd, tkus dk dksbZ mica/k ugha gS && izfrj{kk dh btktr ds vkosnu esa mfYyf[kr vk/kkjksa ij /;ku fn;k tkuk gksxkA bl ekeys esa varoZfyr iz‘u ;g gS fd btktr iznÙk fd, tkus ds i‘pkr~ D;k izfroknh fyf[kr mÙkj Qkby djus dks vuqKkr fd;k tk ldrk gS ;k ‘kiFki= }kjk lefFkZr btktr iznku fd, tkus dk vkosnu i;kZIr gS vkSj fyf[kr mÙkj Qkby fd, tkus ds fy, vfrfjDr volj iznku ugha fd;k tkuk pkfg,\ ¼iSjk 2 vfHkfu/kkZfjr % /kkjk 23&?k¼3½ ds v/khu Hkw&Lokeh ds i{k esa okLrfod vko‘;drk dh mi/kkj.kk gSA ;g mi/kkj.kk [kaMuh; gS] blfy,] izfrj{kk dh btktr iznku fd, tkus ds i‘pkr~ LFkku fu;a=d izkf/kdkjh] Hkw&Lokeh dh okLrfod vko‘;drk ij vkSj mu vk/kkjksa ij ftu ij ls izfrj{kk dh btktr iznku dh xbZ gS] fofuf‘pr djus ds fy, vxzlj gksxkA okLrfod vko‘;drk ds vfrfjDr vU; dksbZ ckr fofuf‘pr fd;k tkuk mlls visf{kr ugha gSA vr% /kkjk 23&?k dh Li"V vkSj lknh Hkk"kk ds ljy ikB esa] mldks izfrj{kk dh btktr iznku fd, tkus ds i‘pkr~ vfHk/kkjh }kjk fyf[kr mÙkj Qkby fd, tkus dk dksbZ mica/k ugha gSA HkkM+k fu;a=d izkf/kdkjh }kjk v/;k; 3&d dh ;kstuk ds v/khu mu vk/kkjksa ij fopkj fd;k tkuk vkSj fofuf‘pr fd;k tkuk gksxk ftu ij ls izfrj{kk ds fy, vfHk/kkjh vuqKkr fd;k x;k gS] dksbZ vU; fookn fofuf‘pr fd;k tkuk mlls visf{kr ugha gSA bl izdkj] funsZ‘k fd, x, iz‘u dk mÙkj fuEukuqlkj fn;k tkrk gS % ^^vf/kfu;e ds v/;k; 3&d dh ;kstuk vkSj /kkjk 23&?k ds v/khu vf/kdfFkr izfØ;k ds v/khu izfrj{kk dh btktr iznku fd, tkus ds i‘pkr~ fyf[kr mÙkj Qkby fd, tkus ds fy, le; iznku fd, tkus dk dksbZ mica/k ugha gSA HkkM+k fu;a=d izkf/kdkjh ls csn[kyh ds fy, vkosnu ij ls vxzlj gks dj lafgrk ds vkns‘k 18 fu;e 13 ds v/khu ;Fkk micaf/kr lk{; vfHkfyf[kr fd, tkus ds i‘pkr~ mu vk/kkjksa ij fopkj djus ds mijkar ftu ij ls vfHk/kkjh dks izfrj{kk dh btktr iznku dh xbZ gS] vkosnu fofuf‘pr fd;k tkuk visf{kr gSA** 1995 ts ,y ts 272 esa 1987 ts ,y ts 397 myVk x;kA 2003¼1½ ts ,y ts 85 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 19 ,oa 20
Jha, J. -- 1. This revision is referred to the larger Bench by learned Single Judge by order dated 11.11.2006 to determine the following question:
"Whether the application under section 23-C of the M.P. Accommodation Control Act, 1961, supported by an affidavit stating the grounds on which a tenant seeks to contest the application for eviction, on being granted, would itself serve the purpose of written statement and no opportunity of separate written statement in additional manner is contemplated in such a situation under Chapter III-A?"
2. Question involved in this case is that after grant of leave whether defendant can be permitted to file written statement or application for grant of leave supported by the affidavit is sufficient and no further opportunity to file written statement should be granted?
3. Shri Rajendra Tiwari, senior advocate, appearing for the petitioner submitted that under Chapter III-A of the M.P. Accommodation Control Act, 1961 (herein after referred to as "the Act") there is no provision for filing of written statement. He submitted that once leave is granted under section 23-C of the Act then Rent Controlling Authority is required to proceed under the provisions of section 23- D of the Act. Section 23- D of the Act lays down that the Rent Controlling Authority shall proceed to decide the application within six months from the date of grant of leave. Learned counsel for the petitioner, therefore, submitted that there is no provision for filing the written statement. Tenant can defend on the grounds on which leave to defend is granted. Tenant has no right to take any other ground other than the grounds on which leave to defend is allowed. He submitted that intention of legislature will be frustrated if time to file written statement is granted. He submitted that special provision for eviction of tenant for specified categories of landlord is defined in section 23-J of the Act for their bona fide need. If opportunity to file written statement under the Code of Civil Procedure (hereinafter referred to as the Code) is given to the tenant after leave to defend is allowed then entire purpose of enactment shall be frustrated.
4. Learned counsel for the respondent placed reliance upon the judgment of this Court in the case of Inspecting Assistant Commissioner of Income Tax, Gwalior v. Rajrani Sahi and another [1987 JLJ 397=1987 MPU 523], and submitted that once permission to defend his case to the defendant is granted then he has right to contest the claim on all grounds. He submitted that in the case of Inspecting Assistant Commissioner of Income Tax (supra), it has been categorically laid down that issues of "leave" and "eviction" must be tried separately as several and distinct issues. After leave is granted permission must be granted to file written statement and tenant has a right to contest eviction on all grounds raised in the written statement.
5. Learned counsel for the respondent submitted that section 23-D provides that the dispute shall be governed by the provisions under the Small Cause Courts Act. Under section 23-D of the Act it is provided that the Rent Controlling Authority shall, while holding an enquiry in a proceeding to which this Chapter applies, follow as far as practicable, the practice and procedure of a Court of Small Causes including the recording of evidence under the Provincial Small Cause Courts Act, 1887. The Rent Controlling Authority shall as far as possible, proceed with the hearing of the application from day to day. He submitted that the correct law has been laid down in the case of Inspecting Assistant Commissioner of India Tax (supra) He submitted that under section 17 of the Provincial Small Cause Courts Act the Court is required to follow the procedure laid down under the Code. Therefore, once leave is granted tenant has a right to file written statement. Learned referring Judge has referred this question doubting on the correctness of the judgment in the case of Insp
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