Madhya Pradesh High Court
Hridesh Alias Jitu Nandvani vs Rajendra Kumar Agrawal on 10 February, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 10th OF FEBRUARY, 2025
MISC. PETITION No. 6201 of 2022
HRIDESH ALIAS JITU NANDVANI
Versus
RAJENDRA KUMAR AGRAWAL
Appearance:
Shri Prakash Chandra Chandil - advocate for the petitioner.
Shri Vikas Singhal, learned counsel for the respondent [R-1].
ORDER
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.
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Accommodation Control Act is not maintainable.
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.
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.
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
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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. reported in 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 it does not discuss the law properly,
therefore, is not binding on the present application under Order XXIII
Rule 1 CPC is wholly misconceived as in the said civil revision this
Court has discussed the provisions of section 12 (4) of M.P.
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Accommodation Control Act and has taken a view and if the said view is
erroneous and is not suiting the petitioner /defendant the same is required
to be challenged before higher forum and get it set aside and on the
ground that since law has not been properly discussed by the Court in its
earlier decision it cannot be held to be per incuriam and if such view is
taken then it may open pandora box regarding similar matters.
Learned counsel further argued that the present Misc. petition is
not maintainable as allowing of the application under Order XXIII Rule
1 of CPC shall finally decide the fate of the counter suit, therefore,
revision petition would lie against rejection of the said application.
Lastly, it has been argued by learned counsel that since the ground
of section 12(1)(f) is not found to be existing in the plaint by discussing
the said fact while rejecting the application under Order VII Rule 11 of
CPC preferred by the respondent No. 1/plaintiff, the said application was
rejected. Thus, once the finding has already been arrived at which has
not been challenged by the petitioner that the ground of eviction under
section 12(1)(f) of M.P. Accommodation Control Act with regard to
bonafide need do not exist in the plaint, the application for withdrawal of
the counter claim has rightly been rejected as still the counter claim with
regard to the eviction on the ground under section 12(1) (a) of M.P.
Accommodation Control Act was available to the petitioner. On the
aforesaid premise, it is argued that the present petition being devoid of
merit is liable to be dismissed.
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Heard counsel for the rival parties and perused the record.
The Supreme Court in the matter of Siddharam Satlingappa
Mhetre vs. State of Maharashtra reported in AIR 2011 SC 312 has held
as under :-
"139. Now we deem it imperative to examine the issue of per incuriam
raised by the learned counsel for the parties. In Young v. Bristol Aeroplane
Company Limited (1994) All ER 293 the House of Lords observed that
`Incuria' literally means `carelessness'. In practice per incuriam appears to mean
per ignoratium. English courts have developed this principle in relaxation of
the rule of stare decisis. The `quotable in law' is avoided and ignored if it is
rendered, `in ignoratium of a statute or other binding authority. The same has
been accepted, approved and adopted by this court while interpreting Article
141 of the Constitution which embodies the doctrine of precedents as a matter
of law.
"......... In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and
Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per
incuriam has been elucidated as under:
"A decision is given per incuriam when the court has acted in ignorance of
a previous decision of its own or of a court of coordinate jurisdiction which
covered the case before it, in which case it must decide which case to
follow (Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944)
2 All ER 293 at 300.
In Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 All
ER 193.); or when it has acted in ignorance of a House of Lords decision,
in which case it must follow that decision; or when the decision is given in
ignorance of the terms of a statute or rule having statutory force."
The same view has been taken by the Apex Court in the case of
Babu Parasu Kaikadi (supra). Law thus emerges from the aforesaid
pronounciations is that rule of per incuriam can be applied where the
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court omits to consider the findings of the same court or the Supreme
Court rendered on the same issue or where the court omits and
consider the statute in total ignorance while deciding the issue.
This court on the earlier occasion while hearing an order of
rejection of an application under Order 7 Rule 11 of CPC preferred
by the respondent No. 1/plaintiff, had held that there would be no bar
so far as applicability of section 12(4) of M.P. Accommodation
Control Act to the present case is concerned, as the property in
question remained tenanted property for considerable long period and
therefore, the provisions of section 12(4) of M.P. Accommodation
Control Act would not be applicable and there would be no bar in
filing of the counter claim for eviction on the ground of bonafide
requirement, which appears to be in total ignorance of provisions of
section 12(4) of M.P. Accommodation Control Act which
specifically reads as under :-
"According to the Madhya Pradesh Accommodation Control Act,
Section 12(4) states that "Where a landlord has acquired any
accommodation by transfer, no suit for the eviction of a tenant shall be
maintainable under sub-section (1) on the ground specified in clause (e)
or clause (f) thereof, unless a period of one year has elapsed from the
date of the acquisition.".
The aforesaid section provides that if the landlord acquire any
accommodation by transfer then unless the period of one year is lapsed
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from the date of acquisition, no suit for eviction under section 12(1) (e)
& (f) of M.P. Accommodation Control Act would be maintainable. Once
law in regard to filing of the suit for eviction on the ground of bonafide
need (residential and non-residential) is very well settled by the
provisions of Act itself, no contrary view is required to be taken and
also since the said law does not require any interpretation, the
interpretation made by this Court in the earlier round can be said to be in
ignoratium of the statute or other binding authority, thus it cannot be
said to be have any binding effect on the present application.
So far as learned trial court having observed that no averments
with regard to the bonafide need of the landlord for evicting the tenant
made by plaintiff in the plaint is concerned, para 9 of the plaint in that
regard can be seen wherein there is specific averment that the suit
accommodation is required bonafidely for expansion of the business as
premises in which business is running is falling short. Thus it can be
said that there is clear averments with regard to the suit is required
bonafidely for expansion of the business of the landlord. Thus the
findings given by the trial court in that regard are perverse. Also the
fact remains that the said order passed by the trial court rejecting the
application under Order VII Rule 11 of CPC had merged into the order
passed by this Court, therefore, its findings may not come to the rescue
of the respondent.
So far as the contention of the petitioner that the present petition is
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not maintainable as the petitioner is having an alternative remedy of
filing a revision against rejection of the application under Order XXIII
Rule 1 of CPC as if the petition would allow it would render the
counter suit decided finally, is concerned, it is a technical plea which
would not oust the jurisdiction of this Court as civil revision would also
have heard by this Court and the said arguments would have suffixed, if
it would have ousted the very jurisdiction of this Court and once this
Court has come to the conclusion that the order passed by trial court is
not sustainable, without going into the technicalities of the matter, this
Court allows the petition and while setting aside order passed by the
learned trial court allow the petitioner to withdraw the counter claim
with liberty to file afresh as and when occasion so arises.
With the aforesaid observation, the instant petition stands allowed
and disposed of.
(MILIND RAMESH PHADKE)
JUDGE
Durgekar
