Usman vs Asgar Hussain And 3 Ors.
2022 Latest Caselaw 6275 MP

                             -1-
                                            Civil Revision No.136 of 2013



     IN THE HIGH COURT OF MADHYA PRADESH AT INDORE

        BEFORE : HON'BLE SHRI JUSTICE ANIL VERMA

                 ON THE 27th OF APRIL, 2022
                CIVIL REVISION No. 136 of 2013
     Between:-
     USMANGANI (DECEASED) THROUGH
     LEGAL REPRESENTATIVES

     SMT. NAZMA BI WD/O USMANGANI,
1.
     AGED 54 YEARS, OCCUPATION: HOUSEWIFE,
     R/O 13/3, RAMPRASAD BHARGAV MARG,
     SHESHWANI MOHALLA, UJJAIN (M.P.)

2. SHAMSHAD BI WD/O ABRAR AHMED,
     D/O USMANGANI,
     AGED 45 YEARS, OCCUPATION: HOUSEWIFE,
     R/O 72, NAGJHIRI ASHA NAGAR,
     DEWAS ROAD, UJJAIN (M.P.)

3. MOHAMMED ASLAM S/O USMANGANI,
     AGED 41 YEARS, OCCUPATION: BUSINESS,
     R/O 13/3, RAMPRASAD BHARGAV MARG,
     SHESHWANI MOHALLA, UJJAIN (M.P.)

4. MOHAMMED ALI S/O USMANGANI,
     AGED 39 YEARS, OCCUPATION: BUSINESS,
     R/O 13/3, RAMPRASAD BHARGAV MARG,
     SHESHWANI MOHALLA, UJJAIN (M.P.)
     AT PRESENT BETMA ROAD, DEPALPUR

5. SMT. NILOFAR W/O INAYAT HUSSAIN,
     AGED 35 YEARS, OCCUPATION: HOUSEWIFE,
     R/O 56, KAGADIPURA,
     CHATRIBAGH, INDORE (M.P.)

                                                   .....APPLICANTS
     (BY SHRI RAJPAL SINGH BAIS, ADVOCATE )
                                 -2-
                                              Civil Revision No.136 of 2013




   AND

1. ASGAR HUSSAIN,
   S/O LATE SHRI MOHAMMAD HUSSAIN,
   AGED 36 YEARS, OCCUPATION: SERVICE,

2. AKBAR HUSSAIN,
   S/O LATE MOHAMMAD HUSSAIN,
   AGED 39 YEARS, OCCUPATION: SERVICE,

3. ASHRAF HUSSAIN,
   S/O LATE MOHAMMAD HUSSAIN,
   AGED 36 YEARS, OCCUPATION: SERVICE,

   R.NO.1 TO 3 R/O 1/1, CHANDRASHEKHAR AZAD MARG,
   TANKI CHOURAHA, UJJAIN (M.P.)

4. SHAMIM BI,
   W/O IQBALKHAN,
   AGED 32 YEARS, OCCUPATION: HOUSEHOLD,
   R/O LOK KA PUL, UJJAIN (M.P.)
                                        .....RESPONDENTS
   (BY SHRI MAHENDRA KUMAR JAIN, ADVOCATE )

     This Civil Revision coming on this day, the court passed the
following:
                           O R D E R

Parties are heard finally at motion hearing stage. The applicants have preferred this civil revision under Section 23-E of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred as "the Act") being aggrieved by the impugned order dated 18/06/2013 passed by the Rent Controlling Authority in Case No.1/A-90(7-A)/2004-05, whereby the

Civil Revision No.136 of 2013

application preferred by the applicants under Order VII Rule 11 of the Code of Civil Procedure, 1908 has been dismissed.

The brief facts of the case are that the Shahjahanbi has filed an application under Section 23-J of the Act for eviction of the present applicant / tenant from the suit premises on the basis of bonafide need of his son Asgar Hussain. Later on Shahjahanbi died on 18/05/2009 and non-applicants No.1 to 4 has been added as land owners in the matter. Thereafter, the applicant / tenant has filed an application under Order VII Rule 11 of the CPC before the Rent Controlling Authority. The Authority after hearing both the parties has rejected the said application by the impugned order, therefore, this revision has been filed.

Learned counsel for the applicants contended that the impugned order passed by the Rent Controlling Authority is without jurisdiction because the Rent Controlling Authority could not decide this case as all the landlord do not fall within the definition of Section 23-J of the Act. The jurisdiction was only with the civil Court. After expiry of the original owner Shahjahanbi, her son could not have taken the benefit of the aforesaid summary procedure. The ground taken for eviction is not genuine ground and their right of ownership has come to an end. The impugned order passed by the Rent Controlling Authority is arbitrary and against the land facts and is also bad in law. Hence, he prayed that the impugned order be set aside and the application filed by the

Civil Revision No.136 of 2013

applicant be allowed and accordingly non-applicants' eviction case be dismissed.

Per contra, learned counsel for the non-applicants supported the order impugned and prays for rejection of the present civil revision.

Both the parties are heard at length and perused the record filed by them along with the revision.

Undoubtedly, Shahjahanbi has filed a petition for eviction before the Rent Controlling Authority and she has been died on 18/05/2009. Thereafter, her legal representatives were taken on record. This being so, a prayer was made for deleting the name of Shahjahanbi from the cause title of the application for eviction. Learned Rent Controlling Authority allowed the application and granted permission to delete the name of Shahjahanbi from the cause title of the application for eviction. Therefore, application for eviction proceeded further.

It is contended by learned counsel for the applicants that Shahjahanbi was admittedly falling in the specified category of landlord under Section 23-A of the Act for eviction. She was covered under the definition of landlord within the meaning of Section 23-J of the Act but after the death of Shahjahanbi, her legal representatives do not fall under the category of landlords under Section 23-J of the Act, therefore, this application for eviction pending before the Rent Controlling Authority is not maintainable.

Civil Revision No.136 of 2013

Learned counsel for the applicants placed reliance upon a judgment delivered by the co-ordinate Bench of this Court in the case of Mahesh Chand and Others Vs. Nishar Khan reported in 2008 (I) MPACJ 71, in which it has been held that the cause of action never survives to the heirs under Section 23-A of the Act, legal heris are having remedy to file a suit under Section 12 of the Act. He has also placed reliance upon a judgment delivered by this Court in the case Santosh Kumar Jaiswal Vs. Joseph and Another reported in (1999) 2 MPJR 19 on the same issue.

On the other hand, learned counsel for the respondents contended that if the petition has been filed under Section 23-A and 23-J of the Act, then the death of landlord will not result into abatement of the proceedings and legal heirs substituted in place of the landlord may continue the proceedings before the Rent Controlling Authority.

Counsel for the respondents placed reliance on paragraph No.29 of the judgment delivered by this Court in the case of Leelawatibai (deceased) through L.Rs. Mahendra Kumar and Othrs Vs. Radhakishan (deceased) through L.Rs. Smt. Sajjanbai and Others reported in 211 (II) MPACJ 347, wherein it has been held as under:-

"29. In the result, we answer the reference in the following manner:-

"(1) In an application for eviction by landlord of specified category under Section 23-J of the Madhya Pradesh Accommodation Control Act

Civil Revision No.136 of 2013

based on the bonafide requirement of the landlord himself any any other person permitted under clause (a) or (b) of Section 23-A of the Act, the death of landlord will not result into abatement of the proceedings and legal heirs substituted in place of the landlord may continue the proceedings before the Rent Controlling Authority.

(2) In case of death of landlord during the pendency of the application for eviction under Chapter III-A based on the ground of bonafide requirement of the landlord along, it would come to an end on death of the landlord and substitution of the legal heirs may not be permitted because the cause of action, as pleaded in the application would come to an end with the death of the landlord. (3) If the death of the landlord takes place after the eviction order is passed in his favour, the legal representatives of the landlord nevertheless may continue the revisional proceedings to defend the order of eviction."

The same principle was laid down in the cases of Dhannalal S/o Mannalal Vs. Kalavatibai and Others reported in 2001 (2) MPLJ 349, Sundarlal Vs. Smt. Ramkali Bai reported in 1993 (I) MPWN 222 and Indarmal Gugalia Vs. Smt. Dopdabai and Others reported in 2005 (II) MPACJ 56.

Relying upon the law laid down in the aforesaid judgments, this Court is of the considered view that the Rent Controlling Authority has rightly held that the death of landlord will not result into the abatement of the proceedings and their legal heirs substituted in place of the landlord may continue the proceedings

Civil Revision No.136 of 2013

under Section 23-A and 23-J of the Act before the Rent Controlling Authority. As such I do not find that the learned Rent Controlling Authority has committed any illegality or jurisdictional error in passing the impugned order, which can be corrected by this Court while exercising the revisional jurisdiction.

In view of the above, the civil revision filed by the applicants has no merit and is hereby dismissed.

Certified copy as per rules.

(ANIL VERMA) JUDGE Tej

Digitally signed by TEJPRAKASH VYAS Date: 2022.04.28 17:37:35 +05'30'