REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELALTE JURISDICTION

CIVIL APPEAL NO._3636____ OF 2008

(Arising out of SLP (C) No. 21407 of 2006)

Sulochana …. Appellant

Versus

Rajinder Singh ….. Respondent

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. Whether the civil  court  has jurisdiction to entertain a composite

suit filed by the appellant herein for eviction of the tenant is the question

involved in this appeal which arises out of a judgment and order dated

28th September, 2006 passed by a learned Single Judge of the High Court

of  Madhya  Pradesh  at  Indore  in  Second  Appeal  No.  260  of  2004,

whereby  and  whereunder  while  allowing  the  appeal  filed  by  the

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respondent, the suit filed by the appellant for eviction of the respondent

was dismissed.  

3. The basic fact of the matter is not in dispute.

4. The premises in dispute is a shop located on the ground floor of

House  No.370-D,  Parasi  Mohalla,  Neemuch  Cantt,  in  the  State  of

Madhya Pradesh.  Appellant purchased the property in question on 23rd

March, 1996 from Smt. Anntu Jenra w/o Sh. Turab Bhai.  Respondent

was  a  tenant  under  the  predecessor-in-interest  of  the  appellant  on  a

monthly rent of Rs.200/- per month.  By a letter dated 29th July, 1996 the

appellant  informed  the  respondent  in  regard  to  the  purchase  of  the

property by her  and requested  the respondent  for  payment of monthly

rent to her.  Since, despite the service of the said letter, the respondent

failed and/or neglected to make payment of rent, the appellant terminated

the tenancy of the respondent and requested him to vacate the tenanted

premises.  It was also mentioned that the shop in question was required

by the appellant bona fide so as to enable her son to carry out business

therein.  Respondent, while denying any liability to pay any rent to the

appellant, also denied her title contending that he has not been informed

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of  the  sale  of  the  property  by  the  original  landlord  in  favour  of  the

appellant.    

5. Appellant  thereafter  filed  a  composite  suit  for  eviction  of  the

respondent on the grounds of :- (i)  default  in payment of rent,  (ii)  her

bona  fide  requirement;  and  (iii)  denial  of  her  title  on  the  part  of  the

respondent.      

6. The trial court considered the merit of the suit for passing a decree

on the ground of bona fide requirement as also on arrears  of rent.   A

decree for mesne profits was also passed.  In regard to denial of title, the

trial court noticed that since the earlier landlord did not give any notice

of  transfer  to  the  respondent,  the  title  of  the  appellant  was  although

denied at that time but the tenant now accepted his title.  

It  was  furthermore  held  that  since  the  court  had  condoned  the

delay for deposit/payment of rent and allowed the respondent time to pay

the rent, the delay in deposit of the same cannot form the basis for grant

of a decree for eviction on that count.  However, as stated earlier, the

court decreed the suit on the ground of bona fide requirement on the part

of  the  landlord  and  directed  the  respondent  to  handover  vacant

possession within two months.   

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7. An appeal, being Regular Civil Appeal No.1A of 2004 filed by the

respondent before the District Judge was dismissed by a judgment and

order dated 17th February, 2004.   

8. Respondent  preferred a second appeal  before the  High Court  of

Madhya Pradesh, which as stated earlier, was allowed by reason of the

impugned judgment and the suit filed by the appellant was dismissed on

that ground alone.    

9. The High Court in its judgment, relying on or on the basis Nandlal

v.  Nangibai  [2006 (1) M.P.L.J. 231], held that  the civil  court has no

jurisdiction  as  the  suit  was  decreed  only  on  the  ground  of  bona  fide

requirement on the part of the appellant.  Nandlal (supra) relied on two

decisions of this Court in Dhannalal  vs.  Kalawatibai and others, [(2002)

6  SCC  16]  and  Ashok  Kumar  Gupta  vs.   Vijay  Kumar  Agarwal,

[(2002) 3 SCC 717].

10. Mr. Sushil Kumar Jain, leaned counsel appearing on behalf of

the appellant, would submit that keeping in view the pleadings of the

parties as also the findings of the learned trial judge, the High Court

must be held to have committed a serious error in holding that the

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civil court had no jurisdiction to pass a decree for eviction.  It was

pointed out that the respondent-tenant was inducted as a tenant in

the suit premises as far as back in 1978 by the previous owner and as

the  appellant  purchased  the  suit  property  on  23rd March,  1996

whereas she became a widow, much earlier, i.e., on 9th July, 1990

and  in  that  view of  the  matter  Chapter  IIIA of  Madhya  Pradesh

Accommodation Control Act, 1961 (in short, ‘the Act’) will not be

applicable.

11. Mr. Pramit Saxena, learned counsel appearing on behalf of the

respondent, on the other hand, drew our attention to the provisions

of Section 45 of Act to contend that the civil court’s jurisdiction is

completely ousted.   

12. Before  adverting  to  the  rival  contentions  raised,  we  would

notice some of the provisions of the said Act.

The  Act  was  enacted  for  giving  protection  to  tenants

belonging to the weaker section of society who were incapable of

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building their own houses.  Tenant has been defined in section 2(i)

to mean :-

“  ‘tenant’  means a person by whom or  on whose  account  or  behalf  the  rent  of  any accommodation  is,  or,  but  for  a  contract express  is,  or,  but  for  a contact  express  or implied,  would  be  payable  for  any accommodation  and  includes  any  person occupying  the  accommodation  as  a  sub- tenant  and  also,  any  person  continuing  in possession  after  the  termination  of  his tenancy  whether  before  or  after  the commencement  of  this  Act  ;  but  shall  not include any person against whom any order or decree for eviction has been made.”

13. Eviction of the tenant is governed by Chapter III of the Act.

Section 11-A of the Act excludes applicability to certain categories

of landlords as specified in Chapter III-A of the Act and as defined

in  Section 23-J.   Section  12,  however,  starts  with a non obstante

clause;  it  specifies  the  grounds  only  on  the  basis  whereof  the

landlord  may  file  a  suit  for  eviction  of  tenant  from  any

accommodation.   

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14. Admittedly,  denial  of  relationship  of  landlord  and  tenant,

arrears  of  rent  and  the  bona  fide  requirement  are  some  of  the

grounds on the basis whereof a suit for eviction can be filed.

15. Section  45 of  the Act  excludes  the  jurisdiction  of  the  civil

court stating :-

“45. Jurisdiction of Civil  Courts barred in respect  of  certain  matters.-  (1)  Save  as otherwise expressly  provided in this Act, no Civil  Court  shall  entertain  any  suit  or proceeding  in  so  far  as  it  relates  to  the fixation of standards rent in relation to any accommodation to which this Act applies or to  any  other  matter  which  the  Rent Controlling  Authority  is  empowered  by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Rent Controlling Authority under this Act shall be granted by any Civil  Court or other authority.  

(2) Nothing  in  sub-section  (1)  shall  be construed as preventing a Civil Court from entertaining  any suit  or  proceeding for  the decision  of  any  question  of  title  to  any accommodation to which this Act applies or any question as to the person or persons who are  entitled  to  receive  the  rent  of  such accommodation.”

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Sub-section (6) of Section 13 of the Act, however, provides

for the benefit of protection against eviction, stating :-  

“13. When  tenant  can  get  benefit  of protection against eviction.-   

(6) If a tenant fails to deposit or pay any amount  as  required  by  this  Section,  the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit, appeal or proceeding, as the case may be.”  

16. Chapter III-A provides for special provisions.  It is confined to

eviction of tenants on grounds of bona fide requirement of different

classes  of  landlords  specified  therein.   A  summary  procedure  is

provided for.  Recourse thereto can be taken only by the specified

landlord within the meaning of the provision of Section 23-J of the

Act  which  means  a  ‘landlord  who is  a  widow or  divorced  wife’

amongst  others.   Amongst  others  a  servant  of  any  Government

including a member of defence services, would also fall within the

purview of the said definition.  Only a landlord who comes within

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the purview of the said definition is entitled to file suit on the ground

of his or her bona fide requirement.  

17. Section 23-H provides for deposit of rent pending proceedings

for eviction or for revision.

18. The jurisdiction of the civil court can thus be excluded only if

the matter  comes within the purview of Section 45 of the Act of

Chapter III thereof.  It is beyond any cavil that the application for

eviction contemplated by Chapter III-A relates to an eviction of the

tenant by the landlord as defined in Section 23-J of the Act.

19. Ex facie Section 45 of the Act has no application to the facts

and circumstances of this case.  Section 45 is subject to the other

provisions contained therein; one of them, indisputably is Section 12

which confers jurisdiction  upon the civil court to entertain a suit for

eviction of  the tenants subject, of course, to the case falling under

one or more grounds specified therein.  

20. It is now well settled that the provision excluding jurisdiction

of the civil court are to be strictly construed.  They are not to be

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inferred  readily.   [See  Swamy  Atmananda  and  Others v.   Sri

Ramakrishna Tapovanam and Others (2005) 10 SCC 51]

21. The jurisdiction of civil court is also to be determined having

regard to the averments contained in the plaint.  Appellant did not

proceed on the basis that she was a ‘specified landlord’ within the

meaning of Section 23-J of the Act.  Furthermore a composite suit

for  eviction  was  filed,  i.e.,  not  only  on  the  ground  of  bona  fide

requirement but also on the ground of default of payment of rent as

also denial of relationship of landlord and tenant.

22. It was explained as to why the civil  court  had the requisite

jurisdiction.   

23. Requisite averment as regards the cause of action for the said

suit was made in paragraph 10 of the plaint which reads as under :-

“(10) That,  despite  communicating information through notice to the defendant about having purchased the disputed shop by the  plaintiff,  and  about  bona  fide  and reasonable  necessity  of  the  suit/disputed shop  along  with  possession  of  excess  area than that of tenanted portion, along with the arrears of the rent thereof, for opening of the

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shop  for  medicines  by  her  son  Rajesh Kumar,  and  because  of  denying  by  the defendant  to  recognize  the  plaintiff  as  the owner of the disputed shop, as also because of denial by the defendant to pay the arrears of  the  rent  as  well  as  handing  over possession of the shop, the plaintiff has been compelled to file this suit.”  

24. It is also relevant to notice the prayers made in the said suit,

which are :-

“13) That  the  plaintiff  prays  for  the following relief against the defendant :-

a) That a decree of eviction may be passed in favour of the plaintiff and against the defendant, to vacate the municipal house No.370-D, in whose north is public road, in south is the house no.370-F; in east is  the house No.370-D; and in west is  joint  gali and house No.370-E are located, and in which the defendant  is  in  occupation  against  rent  &  is carrying on his business by the name & style of M/s. Rathore & Sons; and its vacant possession be peacefully  awarded  to  the  plaintiff  from  the defendant.  

b) That, the plaintiff  be awarded arrears of the rent from the  defendant  amounting  to  Rs.3000/-  and decree may be passed in favour of the plaintiff and against  the  defendant,  and  from  the  date  of institution of the suit till the date of its remittance interest at the rate of Rs.2/- per hundred per month

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may also be awarded by way of compensation & belated payment against use & utilization.

c) That, from the date of the institution of the suit till receipt  of  vacant  possession  of  the  disputed premise,  compensation be awarded at the rate of Rs.200/- per month against the use and utilization of the disputed premises by the defendant.

d) That, the total expenses of the suit be awarded to the plaintiff from the defendant along with interest at the rate of Rs. 2/- per hundred per month, from the  date  of  the  insituttion  of  the  suit  till  its recovery.

e) That,  any  other  justified  relief  which  may  be considered to be eligible by the plaintiff may also be awarded from the defendant.”

25. Respondent  in  his  written  statement  not  only  denied  and

disputed the title of the appellant but also denied and disputed that

he was in default,  apart  from the contention raised as regards the

bona fide requirement of the appellant, inter alia stating :-

“1) That the contents of paragraph 1 of the plaint  are  not  admitted.   The  ex- owner/landlord  of  the  hosue  Antu  Jehara wife  of  Shri  Turab  Bhai  (H.M.  Fazal Hussain)  resident  of  Bombay  has  not communicated any information uptill  today

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to  the  defendant  about  transfer  of proprietorship of the disputed premises; nor has appraised about this  fact  that  presently the  defendant   has  become  tenant  of  the plaintiff.   In  the  notice  issued  by  the plaintiff,   the  date  of  purchase  of  the disputed premises has been shown as 29th of March, 1996 whereas in the plaint, the date of  purchase  has  been  shown  as  23rd of March, 1996, and due to this reason it is not known as to on which date the plaintiff has become the owner/landlord  of the disputed premises.  The plaintiff has mentioned entire contents in paragraph No.1 of the plaint as false  and  illusionary.   The plaintiff  should prove  the  proprietorship  of  the  disputed premises.”  

26. Indisputably, the issue as regards title over a property can be

decided  only  by a civil  court  and,  therefore,  there  cannot  be any

doubt whatsoever hat the suit as framed was maintainable.  Learned

trial judge however, in regard to the issue of denial of relationship of

landlord and tenant opined :-

“20) But,  the  defendant  has  revealed  the reason  about  denial  of  the  title  of  the plaintiff  due to  non-communication  of  any information by his ex landlord Antu Jehara; and it has been made clear in para 26 of his cross-examination that when he had received

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the notice of  the plaintiff,  then he was not admitting the plaintiff  as its  landlord.   But now  he  admits  the  plaintiff  to  be  the landlord  and  is  also  remitting  the  rent. Therefore,  in  such  a  circumstance,  the defendant has disclosed the reason about the denial of the title of the plaintiff.  Therefore, in  this  case,  he  is  not  found  liable  to  be evicted on the basis of denial of title, when he is accepting the title of the plaintiff.  

As regards the ground of default, the trial court held :-

“21) The  plaintiff  has  also  advanced  an argument  that  the  defendant  has  not deposited  the  rent  within  the  prescribed period.  He has not deposited the rent within a period of one (month) since receipt of the notice,  then  any  benefit  would  not  be accruable to the defendant by depositing the rent  later  on,  and  simply  on  the  basis  of having withdrawn and having received the rent  through  court,  it  would  not  be  an abdication  by the  plaintiff  to  have  left  the ground  under  Section  12(A);  whereas  the plaintiff himself does not abdicate this right of  her  own  self.   On  the  aforesaid  point, following ruling have been cited on behalf of the plaintiff:-

i) Hiralal  v/s. Harisingh – 1990 M.P.A.C.J. 88 ;

ii) R.C.  Tambrakar  &  Others   v/s.  Nidhi  Lekha  – 2002 (1) L.S.C. (2) 22.

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iii) Sushil Srivastava   v/s. Nafis Ahamad – 2002 (1) M.P.S. 5 ; and

iv) Kalyansingh   v/s. Ramswarup – 1982 M.P.R.C.J. 62.

But  in  these  citations  it  is  also  mentioned that if permission is granted by the court for depositing  the  rent  belatedly,  i.e.  delay  is condoned,  then  simply  on  this  ground, eviction should not be allowed.”

It was, therefore, not a case that no cause of action had arisen

to file the suit for eviction on the ground of default or denial of title,

but they were negatived having regard to the subsequent events.

27. One of issues which arose for consideration of the learned trial

judge was the jurisdiction of the civil court.  The learned Judge held:

“24) During  the  course  of  the  arguments, the defendant has also raised an objection to the effect that the plaintiff being a woman is widowed  and  on  the  basis  of  necessity, proper forum is not a civil court, but is the Rent  Control  Authority,  and  in  support  of this argument has cited the ruling of Narayan Rao  v/s. Parvatibai – 1998 M.P.A.C.J. 162.

25) In the aforesaid ruling, the suit was filed for eviction simply on the ground of bona fide necessity  i.e.  was  filed  for  obtaining

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possession, in which the point about the arrears of  the  rent  was  not  found;  but  in  the  present case  the  plaintiff  has  since  beginning  has instituted this suit for recovery of arrears of the rent  amounting  to  Rs.3000/-  and for  eviction; and this issue has been framed being disputed amongst the rival parties, and therefore, in such a situation the facts of this case and the citation being different, any relief is not available to the defendant from the aforesaid ruling, and in this respect  the  objection  of  the  defendant  is rejected.”   

28. So far as the ground of bona fide necessity on the part of the

appellant is concerned, it was admittedly held in her favour.

29. The  reliefs  granted  by  the  civil  courts  in  favour  of  the

appellant are as under :-

“a) The  defendant  should  hand  over  the vacant  possession  of  the  disputed premises  of  House  No.370-D,  Parsi Mohalla,  Neemuch  Cantt.  to  the plaintiff within two months of the date of the judgment.  

b) The  defendant  should  pay  rent  to  the plaintiff  in  respect  of  the  disputed premises from 23rd of March, 1996 to 22nd of June, 1997 at the rate of Rs.200/- per month, and thereafter uptil handing over vacant possession, should pay at the rate

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of Rs.200/-  per month against  its use & utilization.   In this  context,  the plaintiff would  be  entitled  to  recover  the  rent deposited by the defendant in the court.”

30. It is, therefore, evident that not only a decree for eviction was

passed,  a  decree  for  payment  of  arrears  of  rent,  which  otherwise

could not have been granted by the Rent Controller, was also passed.

31. Before the first appellate court, inter alia, an application was

filed for rejection of the plaint.  It was rejected.  The first appellate

court held :-

“43. Because the plaintiff has filed the suit apart from the necessity for the business of her son, on the grounds of denial of title and default in payment of rent; therefore such a suit  falls  within  the  jurisdiction  of  a  civil court.  Therefore, the amendment which has been proposed by the plaintiff,  the same is unnecessary and is not bona fide. Due to the reason  of  such  a  situation,  there  is  no necessity to dismiss the suit also.”

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32. In  the  second  appeal,  however,  a  purported  substantial

question of law was framed which reads, thus :-

“Whether, in the facts and circumstances of the case, Civil Court had the jurisdiction to entertain a composite eviction suit filed by a landlord covered by section 23(J) on various grounds including 12 (1)(f) of the Act.”   

33. As noticed hereinbefore the said substantial  question of law

has been answered in favour of the respondent.  

34. The High Court proceeded on the basis that the civil court’s

jurisdiction  would  stand  ousted  if  the  provisions  contained  in

Sections 11, 12, 23-A, 23-J and 45 of the Act are conjointly read

stating :-

“ After having herd learned counsel and going through material available on record, we do not think that learned counsel for the appellant  is  right  in  submitting  that  courts below had the jurisdiction to entertaining the composite suit for eviction in the facts of the present  case.   The  point  and  controversy raised in this appeal stands decided by this court  in  Nandlal  case  supra.   No  contrary view of larger bench or Supreme Court was

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brought  to  notice.   No  doubt  as  a  general rule,  in  all  types  of  civil  disputes,  civil courts  have  jurisdiction  unless  a  part  of cause  of  action  is  craved  out  from  such jurisdiction, expressly or by implication.  In such  a  situation,  it  does  not  amount  to splitting of cause of action.  On a conjoint reading of relevant provisions of the Act and Code of Civil Procedure, to us it is clear that Civil Court’s jurisdiction is barred in respect of composite claim for eviction on bona fide need set up by the special category landlord covered by Section 23(J) of the Act.  In view of  the  above  discussions,  we  have  no hesitation in holding that in the facts of the case  in  hand,  civil  court  acted  without jurisdiction  while  granting  an  eviction decree on the grounds of bona fide need set up  by  the  plaintiff  who  is  indisputably covered by Section 23-J of the Act.”

35. With respect, the learned Single Judge failed to notice that the

definition of ‘landlord’ as contained in Section 2(b) and Section 23-J

are different.   The learned Judge furthermore failed to  notice the

limited  application  of  Chapter  III-A of  the  Act.   Some decisions

have  been  noticed  by  the  learned  Single  Judge,  including  Ashok

Kumar Gupta  vs.  Vijay Kumar Agarwal,   [ (2002) 3 SCC 717 ] to

which we would refer to a little later.  

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36. The definition of ‘specified landlord’ as contained in Section

23-J of the Act is not as broad as the definition of the same term as

contained in Section 2(b) thereof.  A statute must be read, keeping in

view the constitutional scheme of equality as adumbrated in Article

14 of  the Constitution  of  India.   Once a special  benefit  has been

conferred on a special category of landlord, the same must receive

strict  construction.   Even  otherwise,  it  is  well  settled,  that  an

exclusion provision must  be construed strictly.   A statute ousting

jurisdiction of the civil court should also be strictly construed.  

37. Appellant  has  purchased  the  premises  on  23rd March,  1996

whereas the respondent was inducted as tenant of the premises way

back in 1978.  It is, therefore, not a case where the respondent was

inducted as a tenant by the appellant.  She was, thus, not a landlord

within the meaning of Section 23-J of the Act.  The relevant date for

claiming the special  benefit  of  Chapter  III-A was the date of  her

becoming a widow.   

38. An identical question came up for consideration in Winifred Ross

and another  vs.  Evi Fonseca and others, [ (1984) 1 SCC 288 wherein

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application of a pari materia provision contained in Section 13-A1 of the

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 fell

for consideration of this Court.

Plaintiff therein was an officer  of the armed forces.  This Court

while lauding the object of the Act, however, held :-

“Even the widows of such landlords may under clause  (b)  of  Section  13-A1  can  recover possession  of  such  buildings  if  they  satisfied the conditions  mentioned therein.  An analysis of clause (a) of Section 13-A1 shows that the person who wishes to claim the benefit of that section  should  be  a  landlord  of  the  premises while he is a member of the armed forces of the Union and that  he  may recover  possession  of the  premises  on  the  ground  that  the  premises are bona fide required by him for occupation by himself  or  any  member  of  his  family  on  the production  of  the  required  certificate  either while  he  is  still  in  service  or  after  his retirement. The essential requirement is that he should  have  leased  out  the  building  while  he was a member of the armed forces. His widow can also recover the premises of which she is or has  become  the  landlord  under  clause  (b) subject to fulfilment of the conditions. Having regard to the object and purposes of the Act and in particular Section 13-A1 it is difficult to hold that Section 13-A1 can be availed of by an ex- member of the armed forces to recover from a tenant  possession  of  a  building  which  he acquires after his retirement. Acceptance of this argument will expose the very Section 13-A1 of the Act to a successful challenge on the ground of violation of Article 14 of the Constitution for if  that  were  so,  a retired  military officer  who has  no  house  of  his  own  can  purchase  any building in the occupation of a tenant after his

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retirement, successfully evict a tenant living in it  on  the  ground that  he  needs  it  for  his  use, then sell it for a fancy price and again because he  has  no  house  of  his  own,  he  can  again acquire another building and deal with it in the same way. There appears to be no restriction on the number of times he can do so. It was argued that  he would not be able to get  the requisite certificate  under  the  Act  more  than  once.  A reading of Section 13-A1 of the Act shows that the  certificate  should  show  that  the  person concerned  has  been  a  member  of  the  armed forces and that  he does not  possess  any other suitable residence in the local area where he or members  of  his  family  can  reside.  Those conditions being satisfied the certificate cannot be  refused.  A  liberal  construction  of  Section 13-A1 of the Act as it is being pressed upon us would also enable unscrupulous landlords who cannot  get  rid  of  tenants  to  transfer  their premises to ex-military men, as it has been done in this case in order to avail of the benefit of the said  section  with  a  private  arrangement between them. It is also possible that a person who has retired from the armed forces may after retirement  lease  out  a  premises  belonging  to him in  favour  of  a  tenant  and  then  seek  his eviction at his will under Section 13-A1 of the Act.”  

39. Winfred  Ross and  various  other  decisions  came  up  for

consideration again before this Court in  Dr. D.N. Malhtora  vs.  Kartar

Singh,  [ (1988) 1 SCC 656 ].  Following  Winfred Ross (supra), it was

held :-

“12.  On a conspectus of the decisions referred to  hereinbefore  more particularly  the decision rendered  by  this  Court  in  the  case  of  Mrs Winifred  Ross v.  Mrs  Ivy  Fonseca it  is  well settled  that  in  order  to  get  the  benefit  of

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eviction of the tenant in a summary way the ex- serviceman must be a landlord qua the premises as  well  as  the  tenant  at  the  time  of  his retirement from service.  The ex-serviceman is not  competent  to  make  an  application  to  the Rent Controller to get possession of his house by evicting the tenant in a summary way unless and  until  he  satisfies  the  test  that  he  is  a landlord qua the premises and the tenant at the time  of  his  retirement  or  discharge  from service.”

40. The question yet again came up for consideration before a three

Judge  Bench  of  this  Court  in  Bhagwat  Dutt  Rishi  vs.   Raj  Kumar,

[ (1990) 1 SCC 324 ].  The ratio laid down in Winfred Ross (supra) and

Dr. D.N. Malhotra (supra) was upheld stating :-

“10. In  Malhotra  case,  this  Court  was  called upon to consider Section 13-A1 of the very Act with which we are now concerned. On the basis of  the  ratio  in  Winifred Ross case,  this  Court came to the conclusion that  until  the landlord satisfied the test that he was a landlord qua the premises  and  the  tenant  at  the  time  of  his retirement or discharge from service, he would not be entitled to the benefit of Section 13-A of the Act.  11. It is not disputed that the appellant retired on  September  30,  1981.  On  the  finding  the appellant is right in his submission that this was not  a case of transfer  with an oblique motive but  as  the  property belonged  to  a  Mitakshara father, upon his death the property has come to his hands. This feature which is different from the  facts  appearing  in  the  two  reported decisions,  however,  would  not  persuade  us  to

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give  a  different  meaning  to  the  definition  in Section  2 (hh).  In  both  the  cases,  for  good reason this  Court  came to the conclusion that the public officer should have been a landlord of  the  premises  in  question  while  in  service. Admittedly, the appellant was not the landlord before he superannuated.”

41. We may now examine the decision whereupon reliance has been

placed by the High Court, i.e.,  Dhannalal (supra).  In Dhannalal (supra)

the question which arose for consideration was as to whether a specified

landlord could file a composite suit alongwith others for whose bona fide

requirement the eviction of the tenant  was sought for.  Holding that in

such a case even a suit by a co-owner alone would be maintainable, it

was opined :-

“17. It follows that a widow, who is a co-owner and landlady of  the  premises  can  in  her  own right  initiate  proceedings  for  eviction  under Section  23-A(b),  as  analysed  hereinbefore, without  joining  other  co-owners/co-landlords as party to the proceedings if they do not object to  the  initiation  of  proceedings  by  such landlady,  because  she  is  the  owner  of  the property  and  requires  the  tenanted accommodation  for  the  purpose  of  continuing or  starting  the  business  of  any  of  her  major sons.  The  major  sons  though  co-owners/co- landlords may not have been joined as party to the  proceedings  but  it  would  not  adversely affect the maintainability of the proceedings. It

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would also not make any difference if they are also joined as party to  the  proceedings.  Their presence  in  the  proceedings  is  suggestive  of their  concurrence  with  the  widow  landlady maintaining the proceedings in her own right.”

On  the  aforementioned  narrow  context  of  the  factual  matrix

involved therein, it was held:-

“19. ….The  requirement  pleaded  is  the requirement of a widow landlady for continuing or  starting  the business  of  her  major  sons.  In proceedings  for  eviction  of  a  tenant  it  is permissible  for  all  the  co-owner  landlords  to join as plaintiffs. Rather, this is normally done. Now,  if  they  all  file  a  claim before  the  civil court,  an objection may possibly be raised on behalf of the defendant  tenant  that  the widow landlady being one of the claimants for eviction she must go to the Rent Controlling Authority under Chapter III-A. If they collectively join in initiating  the  proceedings  for  eviction  of  the tenant  before  the  Rent  Controlling  Authority under Chapter III-A the defendant  tenant  may object  that  the  requirement  being  that  of  the major  sons  who  are  themselves  applicant landlords  the  claim  should  have  been  filed before the civil court, as is the plea before us. How can such dilemma be resolved?

20. Both the learned Senior Counsel for the parties stated that there is no specific statutory provision  nor  a  binding  precedent  available providing  resolution  to  the  problem  posed. Procedural  law  cannot  betray  the  substantive law  by  submitting  to  subordination  of complexity.  Courts  equipped  with  power  to interpret  law  are  often  posed  with  queries which may be ultimate. The judicial steps of the Judge then do stir to solve novel problems by neat  innovations.  When  the  statute  does  not provide the path and precedents abstain to lead, then  they  are  the  sound  logic,  rational

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reasoning,  common sense and urge for  public good which play as guides of those who decide. Wrong must not be left  unredeemed and right not left unenforced. Forum ought to be revealed when  it  does  not  clearly  exist  or  when  it  is doubted  where  it  exists.  When  the  law  — procedural or substantive — does not debar any two seekers of justice from joining hands and moving  together,  they  must  have  a  common path.  Multiplicity  of  proceedings  should  be avoided and same cause of action available to two at  a time must not  be forced to split  and tried in two different fora as far as practicable and permissible.”

The said decision, therefore, in our opinion, cannot be said to have

any application to the present case.

42. Ashok Kumar Gupta (supra) in fact runs counter to the contention

of the respondent.  Noticing Section 12, 23-A, 23-J and Section 45 of the

Act it was held :

“10. The position after 16-1-1985 is that only in respect  of the aforementioned categories of the  landlords  the  Rent  Controlling  Authority has jurisdiction to order eviction of a tenant on grounds of bona fide requirement under Section 23-A. A conjoint reading of Sections 11-A, 12, 23-A, 23-J and Section 45 would show that in regard to the bona fide personal requirement of the  landlord  who  does  not  fall  within  the specified  categories  in  Section  23-J,  the  civil court  has  jurisdiction  to  entertain  a  suit  and pass decree under clause (e) of sub-section (1) of Section 12 of the Act. It follows that the civil court  rightly  entertained  counter-claim  under Section 12(1)(e) of the Act so the decree passed by it is not vitiated for want of jurisdiction.”

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43. Thus,  any matter  which  stricto  sensu  does  not  come within  the

purview of Chapter III-A would be entertainable by a civil court.  This

ratio of the decisions, in our opinion, was wrongly applied.  

44. We have, therefore, no hesitation to hold that the decision of the

High Court is  unsustainable.   The same is set aside accordingly.  The

appeal is allowed with no order as to costs.

……….….……………………J.

   (S.B. Sinha)

………..………………………J.

      (Lokeshwar Singh Panta)

New Delhi

May 16, 2008

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