Madhya Pradesh High Court
Ahmed Affan vs Smt. Rajni Jain on 9 August, 2023
Author: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 09th OF AUGUST, 2023
CIVIL REVISION No. 389 of 2019
BETWEEN:-
AHMED AFFAN S/O LATE SHRI MOHD. IRFAN,
AGED ABOUT 67 YEARS, OCCUPATION:
BUSINESS R/O TRIVENI TRUNK STORE
1.
KAMANIYA GATE NEAR DAKSHIN MUKI
HNUMAN MANDIR GURUNANAK WARD KATNI
(MADHYA PRADESH)
AHMED ASIM S/O LATE SHRI MOHD. IRFAN,
AGED ABOUT 55 YEARS, OCCUPATION:
BUSINESS R/O TRIVENI TRUNK STORE
2.
KAMANIYA GATE NEAR DAKSHIN MUKI
HNUMAN MANDIR GURUNANAK WARD KATNI
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI SANJEEV KUMAR MISHRA -ADVOCATE)
AND
SMT. RAJNI JAIN W/O LATE SHRI ASHOK
1. KUMAR JAIN, AGED ABOUT 62 YEARS, R/O NEAR
KAMANIYA GATE KATNI (MADHYA PRADESH)
SMT. GYANESHWARI DEVI JAIN W/O LATE SHRI
JAIKUMR JAIN, AGED ABOUT 70 YEARS, R/O
2.
NEAR KAMANIYA GATE, KATNI (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI RAJAS POHANKAR -ADVOCATE)
................................................................................................................................................
Reserved on: 31.07.2023
Pronounced on: 09.08.2023
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/9/2023
5:08:43 PM
2
This petition having been heard and reserved for orders, coming on
for pronouncement this day, the Court pronounced the following:
ORDER
This revision is under section 23 of M.P Accomodation
Control Act, 1961 read with section 115 of the Code of Civil Procedure
questioning the validity of the order dated 31.05.2019 passed in
Revenue Case No. 04/A-90(7)/2016-17 by Additional Collector-cum-
Rent Controlling Authority (in short - 'RCA')
2. The application was filed by the respondent under section
23A of M.P Accomodation Control Act, 1961 (in short 'Act of 1961)
asking the decree of eviction of the petitioners from the shop, which was
rented out to them by the respondents and also claimed the arrears of
rent w.e.f 01.04.2017 @ Rs.3000/- per month with interest till the
eviction is not made.
3. The reply has been filed by the petitioners denying the
allegations made about the arrears of rent and also denied the need as
has been shown by the respondents in their application.
4. The RCA after recording the evidence of the parties, finally
arrived at the conclusion that the respondents, who were applicant
before the authority successfully proved their case. They have also
proved that they are owner of the disputed shop and present petitioners
are tenant therein.
5. The bonafide need as has been pleaded by the respondents
has been proved that they need the premises for running their business
and as such RCA allowed the application directing the petitioners to
vacate the premises and handover the vacant possession to the
respondents, who are Landlord and two months time was granted from
the date of order to comply the order, but that order has been assailed
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/9/2023
5:08:43 PM
before this Court by filing the instant revision and vide order dated
28.06.2019, the operation of the impugned order dated 31.05.2019 was
stayed.
6. The record of the court below also received. Counsel for the
petitioner has assailed the order mainly on the ground that summon is
required to be issued to the tenant mandatorily under section 23-B of
Act of 1961, but that has not been issued to the tenant and as such
mandatory requirement was not fulfilled and therefore, in view of the
judgment laying down law reported in 2011(2) MPLJ (Satyanjay
Tripathi & another Vs. Banarsi Devi) and further in case of Civil
Revision No.531 of 2018 (Ankit Vs. Kumud Bai) saying that the order
passed by the RCA liable to be set aside. The order passed by the RCA
also been assailed on the ground that the authority has not properly
assessed the evidence adduced by the parties, whereunder, the
respondents being Landlord failed to establish their bonafide need.
Therefore, counsel for the petitioner seeking quashing of the impugned
order.
7. Per Contra, Shri Rajas Pohankar appearing for the
respondents/Landlords has submitted that there is no illegality
committed by the authority while deciding the application filed by the
respondents/Landlord and authority has rightly found that they have
successfully proved their case and also established their bonafide need
for running their business in the shop in question.
8. Shri Rajas Pohankar also submitted that the case on which
the petitioners are placing reliance are not applicable in the facts and
circumstances of the present case, whereas, he submits that the case
reported in (2014) 3 MPLJ 422 (Ritu Shrivastava Vs. Shiv Singh) is
applicable and that judgment has been further assailed before the
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/9/2023
5:08:43 PM
Supreme Court, but affirmed by the Supreme Court. He has also relied
upon the judgment passed by the High Court Bench at Indore in Civil
Revision No. 604/2017 (Jagdishchandra Vs. Ravindra Kumar) decided
on 18.12.2017.
9. Considered the rival submissions of the parties and perusal
of the cases on which they have placed reliance, I am of the opinion that
so far as the law laid down by the High Court in case of Satyanjay
Tripathi (supra) is concerned, the High Court although has observed it
is mandatory for the RCA to issue summon in relation to every
application under section 23-A of the Act of 1961 in the format specified
in Second Schedule. However, in the said case since notice was not
issued in the prescribed format as required under section 23-B(1) of the
Act and not served upon the tenant, therefore, considering the same to
be mandatory requirement, the Court relying upon the decision of
Uttam Rajak Vs. Smt. Shanti Bai Chouksey reported in 2007 (4)
M.P.H.T 91 (CG) set aside the order of the RCA and that legal position
was further followed by this Court in Ankit (supra). Although, in the
present case factual position is otherwise, for the reason that the counsel
for the petitioner/tenant appeared before the RCA submitted an
application seeking leave to defend the tenant and filed written
statement and thereafter participated in the litigation, cross examined the
witnesses and as such they have waived the requirement of serving
notice in the format specified in Second Schedule. Similar situation has
been considered by the Court in case of Ritu Shrivastava (supra) and
found that since application moved by the counsel for the tenant after
receipt of the summon and entered their appearance in further
proceeding through their counsel and also filed an application for leave
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/9/2023
5:08:43 PM
to defend and further filed written statement. The Court in case of Ritu
Shrivastava (supra) observed as under:-
"7. Thus, from the above narration of facts, it is
graphically clear that the applicant/tenants after receipt
of summons of the proceeding entered appearance
through her Counsel and filed an application for leave
to defend and eventually, filed the written statement.
The applicant nowhere in the proceeding before the
Rent Controlling Authority has made a grievance with
regard to service of summons in the prescribed form.
The applicant has duly participated in the proceeding
and was fully aware about the nature of proceeding. In
other words, it is not the case of the applicant that she
has suffered prejudice or was misled on account of
non compliance of Section 23-B(1) of the Act.
Therefore, in the facts of the case, the question,
whether the provision in question is mandatory and the
same can be waived or not, need not be dealt with. The
decision relied upon by the learned Senior Counsel for
the applicant in the case of Satyanjay Tripathi (supra),
is of no assistance as in that case the tenant could not
file the application seeking the leave to defend on
account of non-receipt of summons in the form
prescribed under Section 23-B(1) of the Act.
Therefore, the contention that the proceeding before
the Rent Controlling Authority is vitiated in law does
not deserve acceptance."
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/9/2023
5:08:43 PM
10. Under such situation, if said summon has not been issued in
the proper format, the said illegality does not vitiates the final order only
on this count because the basic object to give notice to the tenant about
the pending application is fulfilled. The Court also considered the case
of Satyanjay Tripathi (supra) and distinguished, the factual aspect of
the matter saying that the petitioner cannot be given benefit of the said
case because in that case tenant could not filed application seeking leave
to defend on account of non-receipt of summon in the format prescribed.
As such petitioner in the present case cannot take benefit of the same. In
the subsequent judgment on which counsel for the respondent has
placed reliance i.e Jagdishchandra (supra) Indore Bench also
considered the case of Ritu Shrivastava (supra) and submits that when
counsel for the tenant appeared in prescribed limit, moved application,
sought permission from the court to defend the tenant and meaning
thereby that they had full knowledge of the proceeding initiated against
them and as such they cannot take benefit alleging mandatory
requirement of issuance of summon in the prescribed format not been
complied with.
11. Considering the submissions made by counsel for the parties
and perusal of the record, it is clear that the petitioner/tenant contested
the case filed their written statement and also cross examined the
witnesses and produced their witnesses also and thereafter scrutinizing
the stand of the parties and evidence adduced by them, the authority has
thereafter arrived at conclusion that the bonafide need has been
established. Therefore, there is no need for this Court to substitute his
opinion specially under the circumstance when counsel for the petitioner
failed to establish any perversity in the impugned order of the authority.
Thus, in my opinion there is no merit in the submission made by the
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/9/2023
5:08:43 PM
counsel for the petitioner and as such calling for interference in the
impugned order. However, considering the facts and circumstances of
the case, this Court grants further 6 month's time from the date of this
order to the petitioner to vacate the premises in question.
12. Therefore, the revision is without any substance and is
accordingly dismissed.
(SANJAY DWIVEDI)
JUDGE
tarun
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/9/2023
5:08:43 PM
