The court determined that earlier decisions regarding the maintainability of a counter claim must accurately consider all statutory provisions, asserting the ability to withdraw and refile counter claims post-acquisition under specific conditions.

ORDER :

1. The present petition under section 227 of Constitution of India has been filed by the petitioner against the order dated 10/11/2022 passed by 3rd Civil Judge, Junior Division, Gwalior in RCSA 249/2017, whereby, while hearing an application under Order XXIII Rule 1 of CPC for returning back of the counter suit preferred by the present petitioner /defendant filed under the provisions of M.P. Accommodation Control Act i.e. section 12 (1)(a) and 12(1) (f) it was rejected holding that since on earlier occasion while deciding the application under Order VII Rule 11 of CPC, this Court in Civil revision No. 504 of 2018 vide order dated 07/08/2019 has held the counter suit/claim to be maintainable under section 12(1) (f), therefore, the present application for withdrawal of the suit alleging the same in derogation of section 12 (4) of M.P. Accommodation Control Act is not maintainable.

2. Short facts of the case are that suit for declaration and permanent injunction against present petitioner and erstwhile owner of the property, in which, a counter suit under section 12(1) (a) & 12(1) (f) of M.P. Accommodation Control Act was moved by the present petitioner seeking eviction of respondent No. 1/tenant on the ground of arrears of rent and bonafide requirement.

3. Against the said counter claim, earlier an application under Order VII Rule 11 of CPC was preferred by respondent No. 1/tenant which was rejected vide order dated 18/07/2018 which was challenged before this Court in Civil Revision No. 504/2018, wherein, vide order dated 07/08/2019 order passed by the trial court was held to be proper and while dismissing the revision, this Court observed that the counter suit for eviction on the ground of bonafide requirement. was very much maintainable and the said findings was challenged by the respondent after considering the provisions of section 12(4) of M.P. Accommodation Control Act.

4. Assailing the said rejection of the application, learned counsel for the petitioner had argued before this Court that since the earlier order passed in Civil Revision was per incuriam as it had not considered the provisions of section 12(4) of M.P. Accommodation Control Act in proper perspective, therefore, it cannot be said to be binding and on the basis of said order findings given by learned trial court that present application under Order XXIII Rule 1 of CPC was not maintainable was per-se-illegal. While referring to the provisions of section 12(4) of M.P. Accommodation Control Act, it is submitted that provisions of such section is very much clear with regard to the legal position where landlord has acquired the tenanted accommodation by transfer in that condition no suit for eviction of the tenant shall be maintainable under sub section 1 of section 12 of M.P. Accommodation Control Act on the specified ground for section (e) and (f) unless period of one year has been lapsed from the date of acquisition and since the said provisions was not considered in the light of the judgment passed by the Apex Court in the case of Babu Parasu Kaikadi (Dead) by LRs. vs. Babu (Dead) by LRs. AIR 2004 SC 754, the order is bad in law. On the basis of aforesaid arguments, it is submitted that the order impugned herein deserves to be set aside and the petitioner/defendant be permitted to withdraw the counter claim and prefer it after a period of one year under section 12 (4) of M.P. Accommodation Control Act. On the other hand, learned counsel for the respondent No. 1/tenant submits that the arguments raised by the learned counsel for the petitioner that earlier order passed in civil suit No. 504/2018 dated 7/08/2019 is per incuriam as