Madhya Pradesh High Court
Smt. Gyatribai vs Smt. Shakuntala on 24 April, 2023
Author: Arun Kumar Sharma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
ON THE 24 th OF APRIL, 2023
CIVIL REVISION No. 237 of 2023
BETWEEN:-
1. SMT. GYATRIBAI W/O LATE CHEETU SINGH,
AGED ABOUT 72 YEARS, PLOT NO. 34 PADAWA
DOODHTALAI KHANDWA TEHSIL NAND
DISTRICT- KHANDWA (MADHYA PRADESH)
2. SHRI DATTU S/O LATE GANGARAM, AGED ABOUT
70 YEARS, R/O PLOT NO. 34 PADAWA
DOODHTALAI KHANDWA TEHSIL NAND
DISTRICT- KHANDWA (MADHYA PRADESH)
3. RAJESH SINGH S/O LATE MOTI SINGH, AGED
ABOUT 38 YEARS, R/O PLOT NO. 34 PADAWA
DOODHTALAI KHANDWA TEHSIL NAND
DISTRICT- KHANDWA (MADHYA PRADESH)
4. SMT. MAYA W/O SANTOSH SINGH, AGED ABOUT
39 YEARS, R/O PLOT NO. 34 PADAWA
DOODHTALAI KHANDWA TEHSIL NAND
DISTRICT- KHANDWA (MADHYA PRADESH)
5. SMT. SUSHILA BAI W/O LATE HIRALAL, AGED
ABOUT 61 YEARS, R/O PLOT NO. 34 PADAWA
DOODHTALAI KHANDWA TEHSIL NAND
DISTRICT- KHANDWA (MADHYA PRADESH)
6. PANKAJ S/O LATE CHEETU SINGH, AGED ABOUT
47 YEARS, R/O PLOT NO. 34 PADAWA
DOODHTALAI KHANDWA TEHSIL NAND
DISTRICT- KHANDWA (MADHYA PRADESH)
.....APPLICANTS
(BY SHRI AVINASH ZARGAR - ADVOCATE)
AND
SMT. SHAKUNTALA W/O LATE HIRALAL MAALI
MALVIYA COLONY GALI NO. 3 LAL CHOWKI KHANDWA
TEHSIL AND DISTRICT- KHANDWA (MADHYA
Signature Not Verified
Signed by: PANKAJ NAGLE
Signing time: 4/29/2023
1:10:53 PM
2
PRADESH)
.....RESPONDENT
(BY SHRI ASHUTOSH JOSHI - ADVOCATE)
This revision coming on for admission this day, th e court passed the
following:
ORDER
The applicants being defendants have filed the present revision
challenging the order dated 10.03.2023 passed by the First Civil Judge, Junior
Division, Khandwa District Khandwa whereby the trial Court has rejected an
application filed by the applicants under Order 7 Rule 11 of the C.P.C.
Brief facts of the case are that the respondent / plaintiff has filed the suit
seeking relief of vacant possession and arrears of rent for 11 months in respect
of the property detailed in the plaint, alleging therein that the applicants are not
paying rent to him regularly and therefore, he has filed the suit for eviction
against the applicants on the ground of bona fide need, non-payment of rent
and nuisance.
After service of notice, the applicants filed an application under Order 7
Rule 11 of the CPC seeking rejection of plaint on the ground that the suit filed
by the plaintiff under the M. P. Accommodation Control Act, 1961 is not
maintainable, as the remedy to file the same lies before the Rent Control
Authority under Section 23-A of the Madhya Pradesh Accommodation Control
Act, 1961 (herein after referred to as the Act"). Since the respondent is a
landlord as provided under Section 23-J of the Act, as she is widow and senior
citizen which comes under the definition of Landlord as provided under Section
23-J of the Act.
The respondent filed the reply to the aforesaid application stating therein
Signature Not Verified
Signed by: PANKAJ NAGLE
Signing time: 4/29/2023
1:10:53 PM
that the Civil Court has jurisdiction to hear the aforesaid suit on the ground that
the relief which was sought by her, are bona fide requirement of the premises
and default of rent.
Learned trial Court vide order dated 10.03.2023 rejected the said
application holding that the Landlord defined under Section 23-J of the Act, can
file a suit only when there is an bona fide need. However, if the landlord under
Section 23-J sought other reliefs, the remedy lies before the Civil Court by filing
an application under Section 12(1) of the Act, and therefore, the Civil Court has
jurisdiction to entertain the suit.
Learned counsel appearing on behalf of the applicants submits that the
trial Court has committed an error in rejecting the application filed under Order
7 Rule 11 of the CPC. He argues that as the respondent falls within a definition
of special category of Landlord under Section 23-J of the Act being a widow,
the only remedy to file the suit is before the Rent Controlling Authority and the
Civil Court has no jurisdiction to entertain in the suit. He has placed the reliance
on the judgment passed in case of "Nandlal Vs. Mangibai, 2006 (1)
M.P.L.J 231 and Shyamsingh Vs. Mulya Bai, 2006(3) M.P.L.J. 125 in this
regard.
Heard learned counsel for the parties at great length and perused the
impugned order.
A Full Bench of this Court in the case of Ashok Kumar Shiv Prasad
Verma vs. Baboolal s/o Gorelal and another, 1998(1) MPLJ 461 , has
observed that the plaintiff is the dominus litis and has a right to choose the
forum. The Full Bench has categorically held that there is no provision
specifically prescribed under Section 45 of the Act prohibiting any landlord
under Section 23-J of the Act for seeking a remedy before the Civil Judge. The
Signature Not Verified
Signed by: PANKAJ NAGLE
Signing time: 4/29/2023
1:10:53 PM
aforesaid judgment passed by the Full Bench has been referred by this Court in
a case of Rayees Ahmed vs. Iddo Bee, 2012(3) MPLJ, 139. In paragraph 8
of the said judgment reads as under :-
"8 Another aspect is that the Apex Court also in
the case of Ashok Kumar Gupta vs. Vijay Kumar
Agrawal, 2002(3) MPLJ (SC) 50 = (2002) 3
SCC 717, has considered these aspects and as
has been referred in some of the decisions given
thereafter by this Court, the provisions of
Section 45 of the Act have been interpreted. The
Apex Court has also said that there is no
absolute bar that a specified landlord as defined
under Section 23-J is prohibited to approach the
Civil Court for claiming any relief whatsoever
against the tenant. For the said purposes, the
specific provision made under Section 11-A of
the Act have also been noted. From the
enunciation of law as laid down by the Full
Bench of this Court and by the Apex Court as
also other coordinate Bench, it is clear that the
plaintiff is the dominus litis and the plaintiff has
a right to choose the forum, if there is no
specific prohibition of the jurisdiction of the
Civil Court. As has been pointed out herein
above, the respondent has filed the suit not only
for bona fide need of shop for establishing the
business of her son but she has also
categorically said that the petitioner was a
defaulter, was not making payment of rent
regularly. He has sublet the demise premises to
somebody else without the consent of the
respondent. In response to the notice issued by
the respondent, the petitioner has denied the
ownership of the respondent over the suit shop
and, therefore, the decree of eviction is required
to be granted as provided in different sub
clauses of sub-section (1) of Section 12 of the
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Signed by: PANKAJ NAGLE
Signing time: 4/29/2023
1:10:53 PM
Act. If that is the claim made, how could it be
said that such a suit is not maintainable before
the Civil Court and the same is liable to be
dismissed, as per the bar prescribed under
Section 45 of the Act"
In view of the aforesaid judgment and as has been held by the Full Bench
of this Court, the landlord is dominus litis and has a right to choose the forum,
the trial Court has not committed any error in rejecting the application filed by
the applicant under Order 7 Rule 11 of the CPC.
Consequently, the present revision is hereby dismissed.
(ARUN KUMAR SHARMA)
JUDGE
pn
Signature Not Verified
Signed by: PANKAJ NAGLE
Signing time: 4/29/2023
1:10:53 PM
