Sulochana Vs. Rajindra Singh  INSC 984 (16 May 2008)
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
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 2
respondent, the suit filed by the appellant for eviction of the respondent was
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 3 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
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.
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
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 5 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 6 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.
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
(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."
8 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 9 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 10 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 11 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 :-
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.
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 12 may also be awarded by way of compensation
& belated payment against use &
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.
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.
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
13 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 14 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.
15 iii) Sushil Srivastava v/s.
Nafis Ahamad - 2002 (1) M.P.S. 5 ; and iv) Kalyansingh v/s. Ramswarup - 1982
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
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.
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 16 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 17 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
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
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."
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 19
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.
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 21 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 22 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
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 23 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
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 24
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
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 25 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
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 26 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
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."
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.
(S.B. Sinha) ......................................J.
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