1985 Supreme(MP) 506

Dr. T. N. Singh, J.
Jyoti Swaroop v. Birja.
C. R. No. 189 of 1985 (G); Decided on 1-11-1985.

Headnote:(1) Accommodation Control Act, 1961 (M. P.) -- Ss. 23-A and 23 C -- composite order for refusing leave to defend and eviction -- cannot be passed -- issues of eviction and leave are separate and distinct -- to be decided separately.

        (2) Accommodation Control Act, 1961 (M. P.) -- Ss. 23 C and 23-A provision under S. 23-C -- is a self -- contained Code and independent provision -- it forestalls determination of question of eviction raised under S. 23-A.

        (3) Accommodation Control Act, 1961 (M. P.) -- S. 23-C, proviso -- question of leave decided against tenant in his absence -- for such ex parte order relief is provided in proviso -- burden shifts to tenant to prove sufficient cause.

        (4) Constitution of India -- Art. 227 -- writ under -- error of law can be corrected by High Court.

        This petition is by the tenant in a proceeding for his eviction which was initiated under section 23-A of the M. P. Accommodation Control Act, 1961 (for short the Act) by non-applicant. The petitioners application for "leave" to defend made under S. 23-C of the Act was dismissed on the sole ground of his absence in Court on the date fixed for hearing of the application. This was done on 20-5-1985 and against this order an application was preferred by the petitioner for re-hearing the matter, condoning his default. This application was also dismissed. This was done on 13-8-1985, which has brought the petitioner to t his Court.

        Held : I have heard counsel for both sides and I have no doubt that the Authority adopted, all through, a non-judicial approach in the matter. Indeed, the relevant provisions are not at all borne in mind by the Authority which has occasioned a gross failure of justice in the case. The errors of law must be corrected by this Court exercising its power under Art. 227 of the Constitution because both orders passed on 20-5-1985 and 13-8-1985 are extra-jurisdictional.

        Shri Ramji Sharma, petitioners counsel has drawn my attention to the decision of this Court in the case of Rajendra Kumar Seth (Civil Revision No. 160/85 decided on 12-10-1985) to submit that a composite order is not contemplated under the Jaw and as such the order passed on 20-5-1984 is invalid and is liable to be set aside. There is much substances in this submission because not only petitioners application for leave to defend was dismissed, albelt, for his absence, but his eviction was finally decided on the same day, by the same order. I have taken the view, in Rajendra Kumars case (supra), that such a procedure smacks of an extra-judicial approach and defeats ends of justice. The issues of leave and of eviction are separate and distinct and have to be decided separately, distinctly and indeed independently. Only when such a procedure is adopted, it can be said that there is judicial determination of the dual lis, otherwise not. It would, otherwise, appear that the Authority had made up its mind to finally decree the suit, and order eviction, and with that object the application for leave to defend was dismissed to achieve the objective. It has to be noticed that section 23-C is a self-contained Code and an independent provision. It forestalls determination of the question of eviction raised under section 23-A by creating a valuable right in the tenant to defend landlords action for eviction. Legislature advisedly pre-empted clubbing and trial of the issues of leave and eviction by providing separate procedures for determination of the two issues separately. Indeed, the question of eviction becomes determinable only when no leave is prayed or when it is refused, not before that.

        I am also of the tentative view that the issue of leave can be, and must be, determined on merits which has not been done in the instant case. When an application is filed by the tenant under section 23-C, the Authority must record a finding whether or not a case for leave to defend was made out. If the finding is recorded against the tenant in his absence, for such an exparte order relief is provided explicitly in the proviso. Indeed, then only burden shifts to the tenant to prove sufficient cause contemplated under the proviso. Indeed, the issue was not at all determined in this case. The Authority committed a gross error of law in avoiding due determination of the issue and adopted a leap-frog procedure by deciding the landlords application and allowing the same by decreeing eviction. There is, no doubt, that such a procedure is not contemplated under the Act. Without determination of the issue of leave, the Authority has no jurisdiction at all to proceed to make determination of the issue of eviction. The failure of jurisdiction in this regard is so fragrant that it is uncondonable and the order being totally devoid of jurisdiction must be held to be nullity.

        In so far as the subsequent order passed on 13-8-1985 is concerned, further discussion has become redundant because of what is held above and also because the earlier order passed on 20-5-1985 has been treated non-est in law. In any event, it has to be still observed that a similar approach is displayed by the Authority in passing the subsequent order also. No opportunity was given to the petitioner to substantiate his case. Whether there was sufficient cause for the petitioner to be absent on the date which was fixed for hearing of his application for leave to defend, had to be determined on cogent and credible material and it was incumbent on the Authority to afford reasonable opportunity to both sides to prove their respective cases. This has not been done, I feel disposed to take the view that the very fact of non-determination of the issue of leave on merits constituted sufficient cause and failure by the Authority to re-hear the matter for determination of issue on merits vitiated and kills the order.

        Accordingly, the orders passed on 20-5-1985 and 13-8-1985 are set aside. The Authority is directed to hear the petitioner afresh on his application for leave to defend which he had filed against the landlord non-applicants application for eviction filed under section 23-A of the Act. Petition allowed.