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2007 Supreme(MP) 1181
2008(3) JLJ 269
(SUPREME COURT)
A.K. Mathur and Markandey Katju, JJ.
Jagannath Kasturchand, Yarn Merchants v. Rajkumar and
another Civil Appeal No. 6769 of 2001 : against the judgment of M.P. High Court, Jabalpur, passed in Second Appeal No.514 of 1990;
Decided on 10.12.2007.
Vivek Tankha with Harishankar K. for appellant;
Raju Ramchandran with Prakash Shrivastava for respondents.
Headnote:Accommodation Control Act, 1961 (M.P.) -- Ss.12(1)(b), 14, 15 and 16 -- sub-tenancy created before enforcement of the Act -- decree for eviction passed by High Court in second appeal -- impact of Ss.14, 15 and 16 not considered -- even impact of earlier enactment not taken into account -- case remitted for fresh consideration.
It was admitted position that the appellant-defendant was subtenant in the suit premises. The tenant claimed that he was subtenant since 1928. However, sub-tenancy was created 60 years back i.e. somewhere in 1947. The present Act came into force in 1961. Though the plaintiff admitted that the sub-tenancy was lawfully created as it was permissible to create sub-tenancy under section 108(j) of the Transfer of Property Act, but it was contended that by virtue of sections 14, 15 and 16 of the Act, sub-tenancy became unlawful entailing a decree for eviction under section 12(1)(b) of the Act.
Learned Single Judge after considering the matter, with reference to the various decisions of the apex Court came to the conclusion that the tenant did not comply with the provisions of the Act as no notice was given regarding the creation of sub-tenancy within six months of the commencement of the Act which came into force on 30.12.1961. Learned Single Judge took the view that there was nothing in section 15 of the Act which restricted the period for the word "before" and therefore, the word "before" should be construed on any time before 30.12.1961. Then, it was held that sub-tenancy was created before 30.12.1961 but was not complied with section 15 of the Act, therefore, the plaintiff/the respondent herein was entitled to a decree for eviction under section 12(1)(b) of the Act. [Paras 3 & 4
In fact the learned Single Judge did not discuss section 15 of the Act in detail specially with reference to the earlier sub-tenancy that whether the earlier sub-tenancy was valid or not. Learned counsel for the appellant has stressed that as per section 15 of the Act the sub-tenants are protected. He invited our attention to section 15 of the Act and submitted that sub-tenancy was lawful either in whole or in part by the tenant and even if notice was not given to the landlord for creation of sub-tenancy still he is protected under section 16 of the Act. [Para 6
Held : We do not want to express any opinion but the impact of section 15 was not properly considered by the learned Single Judge and he came to the abrupt conclusion. Therefore, it would not be proper to discuss more on this question here and we think it proper that this case be remanded back to the High Court for reconsideration of sections 14, 15 and 16 of the Act in respect of this case. [Para 8
LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 12¼1½¼[k½] 14] 15 rFkk 16 && miHkkM+snkjh] vf/kfu;e izo`Ùk gksus ds iwoZ l`ftr && mPp U;k;ky; }kjk f}rh; vihy esa csn[kyh dh fMØh ikfjr && /kkjk 14] 15 rFkk 16 ds la?kkr ij fopkj ugha fd;k x;k && iwoZrj vf/kfu;fefr ds la?kkr ij /;ku ugha fn;k x;k && u, fljs ls fopkj fd, tkus ds fy, ekeyk izfrizsf"kr fd;k x;kA
;g Lohd`r vofLFkfr Fkh fd vihykFkhZ&izfroknh okn ifjlj esa miHkkM+snkj FkkA vfHk/kkjh us nkok fd;k fd og 1928 ls miHkkM+snkj FkkA fdlh Hkh Hkk¡fr] miHkkM+snkjh 60 o"kZ iwoZ] vFkkZr~ dHkh 1947 esa l`ftr gqbZ FkhA orZeku vf/kfu;e 1961 esa izo`Ùk gqvkA ;|fi oknh us Lohdkj fd;k fd miHkkM+snkjh fof/kiw.kZ l`ftr gqbZ Fkh D;ksafd laifÙk varj.k vf/fku;e dh /kkjk 108¼´½ ds izHkko ls miHkkM+snkjh l`ftr fd;k tkuk vuqKs; Fkk] fdarq ;g ladFku fd;k x;k fd vf/kfu;e dh /kkjk 14] 15 rFkk 16 ds izHkko ls miHkkM+snkjh voS/k gks xbZ vkSj vf/kfu;e dh /kkjk 12¼1½¼[k½ ds v/khu csn[kyh dh fMØh vfuok;Z gks xbZA
ekeys ij fopkj djus ij loksZPp U;k;ky; ds fofHkUu fu.kZ;ksa ds funsZ‘k ds i‘pkr~ fo}ku U;k;k/kh‘k dk fu"d"kZ Fkk fd vfHk/kkjh us vf/kfu;e ds mica/kksa dk ikyu ugha fd;k D;ksafd vf/kfu;e ds izorZu ds tks 30-12-1961 dks izHkko‘khy gqvk] Ng ekl ds Hkhrj miHkkM+snkjh ds l`tu ds ckjs esa dksbZ lwpuk ugha nh FkhA fo}ku ,dy U;k;k/kh‘k dh jk; ;g cuh fd vf/kfu;e dh /kkjk 15 esa ,slk dqN&Hkh ugha gS ftlls ‘‘kCn ^^iwoZ** dh le;kof/k lhfer gksrh gks vkSj blfy, ‘‘kCn ^^iwoZ** dk vFkkZUo;u 30-12-1961 ds iwoZ fdlh le; dk fd;k tk,xkA rc] ;g vfHkfu/kkZfjr fd;k x;k fd miHkkM+snkjh 30-12-1961 ds iwoZ l`ftr dh xbZ Fkh fdarq vf/kfu;e dh /kkjk 15 dk vuqikyu ugha gqvk Fkk blfy, oknh&,rfLeu~ izR;FkhZ vf/kfu;e dh /kkjk 12¼1½¼[k½ ds v/khu csn[kyh dh fMØh dk gdnkj FkkA ¿ iSjk 3 ,oa 4
okLro esa fo}ku ,dy U;k;k/kh‘k us vf/kf;e dh /kkjk 15 dk foospu ugha fd;k] fo‘ks"kr% iwoZrj miHkkM+snkjh ds lanHkZ esa fd iwoZrj miHkkM+snkjh fof/kekU; Fkh vFkok ughaA vihykFkhZ dh vksj ls fo}ku dkmUlsy us cy fn;k gS fd vf/kfu;e dh /kkjk 15 ds vuqlkj miHkkM+snkj lajf{kr gSA mUgksaus gekjk /;ku /kkjk 15 dh vksj vkdf‘kZr fd;k vkSj fuosnu fd;k fd vfHk/kkjh }kjk miHkkM+snkjh iw.kZr% vFkok Hkkxr% fof/kekU; Fkh rFkk Hkw&Lokeh dks miHkkM+snkjh l`ftr fd, tkus ds fy, lwpuk Hkh ugha nh xbZ gks rc Hkh og vf/kfu;e dh /kkjk 16 ds v/khu lajf{kr gSA ¿ iSjk 6
vfHkfu/kkZfjr % ge dksbZ jk; vfHkO;Dr ugha djuk pkgrs fdarq fo}ku ,dy U;k;k/kh‘k }kjk /kkjk 15 ds la?kkr ij leqfpr fopkj ugha fd;k x;k vkSj os vdLekr~ fu"d"kZ ij igq¡p x,A blfy, bl iz‘u ij ;gk¡ vf/kd foospu fd;k tkuk leqfpr ugha gksxk vkSj gekjk ;g fopkj gS fd bl ekeys esa vf/kfu;e dh /kkjk 14] 15 rFkk 16 ij iqufoZpkj ds fy, mPp U;k;ky; dks okil izfrizsf"kr fd;k tkuk leqfpr gksxkA ¿ iSjk 8
Mathur, J. -- 1. This appeal is directed against the order dated 13.2.2001 passed by the learned Single Judge in Second Appeal No.514 of 1990 whereby the learned Single Judge has allowed the appeal and passed a decree of eviction from the suit premises under section 12(1)(b) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as "the Act"). Aggrieved against the said order the present appeal has been filed by the respondent (the appellant herein).
2. Brief facts which are necessary for the disposal of this appeal are as under :
The suit was initially instituted by Smt. Bhuri Bai who died during the pendency of the appeal and therefore her name was deleted from the array of the appellants and her son continued as an appellant-plaintiff. The deceased plaintiff was the owner of the suit premises House No.739, Lordganj, Jabalpur. The suit premises was purchased by her son and deceased Smt. Bhuri Bai from the original owner. When the suit premises was purchased the defendant (the appellant herein) was a tenant therein. Along with him other defendant was also residing in the suit premises. The tenancy was for residential as well as for non-residential purposes. The plaintiff (the respondent herein) filed a suit for eviction on the ground that the suit premises are required bona fide for his/her residence as well as for starting business. Learned counsel for the respondent herein did not press the ground for eviction under sections 12(1)(e) and (f) of the Act. The only ground taken was that the suit premises was illegally sub-let to the appellant herein and, therefore, the decree for eviction was sought on the ground of sub-letting. The suit was dismissed by the trial Court. The first appellate Court also dismissed the appeal and aggrieved against that order the second appeal was preferred. The following substantial question of law was formulated which reads as under:
"Whether in the facts and circumstances of the case the Courts below erred in law in finding that the plaintiffs were not entitled to evict the respondent-defendants from the suit accommodation on the ground specified in clauses (b), (e) and (f) of sub-section (1) of section 12 of the M.P. Accommodation Control Act."
3. The respondent-plaintiff only pressed the ground of clause (b) of sub-section (1) of section 12 of the Act. It was admitted position that the appellant-defendant was sub-tenant in the suit premises. The tenant claimed that he was sub-tenant since 1928. However, sub-tenancy was created 60 years back i.e. somewhere in 1947. The present Act came into force in 1961. Though the plaintiff admitted that the sub-tenancy was lawfully created as it was permissible to create sub-tenancy under section 108(j) of the Transfer of Property Act, but it was contended that by virtue of sections 14, 15 and 16 of the Act, sub-tenancy became unlawful entailing a decree for eviction under section 12(1)(b) of the Act.
4. Learned Single Judge after considering the matter, with reference to the various decisions of the apex Court came to the conclusion that the tenant did not comply with the provisions of the Act as no notice was given regarding the creation of sub-tenancy within six months of the commencement of the Act which came into force on 30.12.1961. Learned Single Judge took the view that there was nothing in section 15 of the Act which restricted the period for the word "before" and therefore, the word "before" should be construed on any time before 30.12.1961. Then, it was held that sub-tenancy was created before 30.12.1961 but was not complied with section 15 of the Act, therefore, the plaintiff/the respondent herein was entitled to a decree for eviction under section 12(1)(b) of the Act. Accordingly, the appeal was allowed the decree of eviction was passed.
Hence, the appeal by the defendant.
5. We have heard learned counsel for the parties and perused the record.
6. In fact the learned Single Judge did not discuss section 15 of the Act in detail special
