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1998 Supreme(MP) 969
1999 (1) JLJ 385
R.S. Garg, J.
Ranu Ghosh (Smt.) v. Rai Bahadur Bhootnath Dey Cheritable Trust
and others
Civil Revn. No. 2011 of 1998; against the order of VII Civil Judge Class II,
Raipur. passed in Civil Suit No. 8-A of 1996; Decided on 2.12.1998.
Alok Aradhe for applicant;
H.B. Agrawal for non-applicant No.1.
Headnote:(1) Civil P.C., 1908 -- S. 115 and O. 41 R. 33 -- only one defendant out of many filing revision -- jurisdiction can be exercised -- order impugned if found illegal may be quashed -- principles of O. 41 R. 33 are applicable. [Para 3
(2) Accommodation Control Act, 1961 (M.P.) -- Ss. 12(1) and 13(1) -provisions under S. 13(1) apply when a suit for eviction is filed under S. 12(1). [Para 7
(3) Accommodation Control Act, 1961 (M.P.) -- Ss. 20 and 13(1) -- Suit for eviction by trust under S. 20 -- provision for deposit of rent under S. 13(1) not applicable. [Para 7
(4) Accommodation Control Act, 1961 (M.P.) -- S. 20 -- eviction mil under -- tenant can be directed to file security to pay arrears of rent and Jar due performance of decree. [Para 8
¼1½ flfoy izfØ;k lafgrk] 1908 && vuq- 115 rFkk vk- 41 fu- 33 && vusd esa ls dsoy ,d izfroknh }kjk iqujh{k.k Qkby fd;k x;k && vf/kdkfjrk iz;qDr dh tk ldrh gS && vk{ksfir vkns‘k ;fn voS/k ik;k tk,] vfHk[kafMr fd;k tk ldrk gS && vk- 41 fu- 33 ds fl)kar ykxw gksrs gSA ¿ iSjk 3À
¼2½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 12¼1½ rFkk 13¼1½ && /kkjk 13¼1½ ds mica/k ml n‘kk esa ykxw gksrs gS tc /kkjk 12¼1½ ds v/khu csn[kyh ds fy, okn Qkby fd;k tkrk gSA ¿ iSjk 7À
¼3½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 20 rFkk 13¼1½ && VªLV }kjk /kkjk 30 ds v/khu csn[kyh ds fy, okn && /kkjk 13¼1½ ds v/khu HkkM+k fuf{kIr fd, tkus dk mica/k ykxw ughaA ¿ iSjk 7À
¼4½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 20 csn[kyh dk okn && vfHk/kkjh dks HkkMs+ dh cdk;k lanÙk fd, tkus ds fy, rFkk fMØh ds vuqikyu ds fy, izfrHkwfr Qkby djus dk funs‘k fn;k tk ldrk gSA ¿ iSjk 8À
1. With the consent of the parties, the matter is finally heard.
2. In a suit filed under Section 20 of the M.P. Accommodation Control Act .seeking eviction of the tenant, as the tenant was not depositing monthly rent and did not deposit the arrears of rent, the plaintiff moved an application under Section 13(6) requesting the Court that defence of the defendant against eviction be struck but. The defendant contested the application and inter alia pleaded that as the suit is not under any of the clause of Section 12(1) of M.P. Accommodation Control Act neither the provisions of Section 13 are applicable nor the tenants are required to deposit the rent. After hearing the parties, the trial Court observed that the suit would be deemed to be a suit under Section 12(1)(a) of M.P. Accommodation Control Act and as such provisions of Section 13 of the Act would be applicable. In view of the findings recorded by it, it directed the defendants to deposit the rent within a period of one month with a further order that if the rent is not deposited within the period fixed by the Court, the defence would stand struck out automatically. Being aggrieved by the said order one of the defendant has filed this revision petition.
3. Shri H.B. Agrawal, learned counsel for the non-applicant No.1 submits that the revision at the instance of one of the tenant is not maintainable because the order against the other two defendants has attained finality and this Court cannot set aside the order in favour of one of the defendant only. This preliminary objection can straight way be rejected in view of provisions of order 41 Rule 33 CPC. Rule 33 of Order 41 provides that the Court shall be entitled to exercise its power in a case where the appeal is only against the part of the decree or one of the defendant alone has filed the appeal. It further provides that if the contingency requires, the Court shall set aside the orders of the lower Court irrespective of the fact that some of the defendants have not chosen to file any appeal. Even if the provisions of Order 43 Rule 33 CPC in their terms may not apply to the revision, the principles underlying Rule 33 of Order 41 can certainly be applied. The objection is over ruled.
4. Shri Aradhe, learned counsel for the applicant submits that in view of the language of Section 13 of the M.P. Accommodation Control Act, the Court below was unjustified in observing that a tenant is liable to make the deposits in compliance of Section 13(1) of the Act and would be bound to suffer the penalty under Section 13(6) if he does not comply with the provisions of Section 13(6). According to him the trial Court was wrong and unjustified in observing that the present suit can be treated to be one under Section 12(1)(a) of the Act. On the other hand Shri Agrawal, learned counsel for the non-applicant No. 1 submits that though the suit is not under any of the provisions of Section 12(1) of the Act but a tenant cannot be permitted to enjoy the property without paying the rent. According to him, pendency of the suit cannot be used as a handle by the tenant for not paying the rent to the landlord.
5. Plaint para 10 reads that the plaintiff is a public charitable institution and it is exempted from the application of provisions of Section 12 of the Act. According to the plaintiffs, they are entitled to evict the tenant not in their capacity as an ordinary landlord but in their capacity as a charitable trust in whose favour notification under Section 3 has already been issued by the State Government. For application of Section 12(1)(a) the said statutory requirement is that a landlord must issue a notice to the tenant demanding the arrears of rent. If the tenant despite demand does not pay the rent within a period of two months from the date of service of the demand notice then the landlord would have a cause of action under Section l2(1)(a) of the Act against the tenant. In the present case, the plaintiff has nowhere stated that
