Ismail Hussain Fatmi v. Radheshyam Gupta

Mr. Pramod Kumar Verma, Senior Advocate with Mr. Sumit Verma, Advocate, for the petitioner. Mr. B.P. Gupta, counsel for the respondent. Sinale Bench: Hon'ble Mr. T.P. Sharma, J ORDER (Passedonl 5th May, 2009)

By this revision, the petitioner has challenged legality & propriety of the order dated 26-11-2007 passed by the Rent Controlling Authority, Rajnandgaon in Case No.S-A/90 of the year 1993-94, whereby learned Rent Controlling Authority has allowed the petition filed on behalf of the respondent under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (for short 'the Code') and dismissed the petition filed on behalf of the petitioner for eviction of the tenanVrespondent.

The order is challenged on the ground that the Rent Controlling Authority has exceeded its jurisdiction by considering the allegation made in the written statement of the respondent instead of considering the allegation made in the plaint relating to tenability of the suit and thereby committed illegality.

I have heard learned counsel for the parties and perused the copy of the impugned order, copy of the petition for eviction filed on behalf of petitioner, copy of the reply/written statement filed on behalf of respondent, copy of the petition under Order 7 Rule 1 1 6Htfe Code and its reply.

Originally the petition for eviction under Section 23-A (a) & (b) of Chhattisgarh Accommodation Control Act, 1961 (for short 'the Act') was filed by the petitioner on the ground that the petitioner is a retired employee and accommodation is required for his residence in which the petitioner has specifically alleged that he is owner of the accommodation and the respondent is tenant of the said accommodation. After filing of written statement on behalf of the respondent, the respondent has filed an application under Order 7 Rule 11 of the C.P.C. on the ground that the present petitioner is not the only landlord and the present respondent is not the only tenant of the accommodation, therefore, the petition for eviction is not competent. The present petitioner has alleged in his reply that after the death of original landlord/owner Shakina Bi, her son i.e. the present petitioner is co-owner of the property and is entitled for eviction for his bona f/cfe need and the respondent is the only tenant. After affording opportunity of hearing to the parties, learned Rent Controlling Authority has altowed the application filed under Order 7 Rule 11 of the Code and dismissed the petition for eviction filed on behalf of the petitioner.

Learned Senior Advocate appearing on behalf of the petitioner submits that tenability of the suit in terms of Order 7 Rule 11 of the Code shall be considered in the light of the allegation made in the plaint and not in the light of the allegation made in the written statement. The present petitioner has alleged in his petition and also in the reply to the application filed under Order 7 Rule 11 of the Code that he is landlord/co-owner of the accommodation and the present respondent is the only tenant of the suit premises, but the Court below has failed to appreciate the allegation of the petitioner and has illegally dismissed the petition for eviction. Learned Senior Advocate further submits ^^;'..-^' that the present revision is maintainable in accordance with Secfion 23-E of 3 the Act & Section 115 of the Code, because the same has been preferred against the final order/decision of the Rent Controlling Authority. He placed reliance in the matter of Mayar (H.K.) Ltd. & Ors. v. Owners & Parties, Vessel M.V. Fortune Express & Ors. in which the Apex Court has held that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement, allegations made in the plaint can be considered only for deciding the tenability of the plaint under Order 7 Rule 11 of the Code. Even the opinion of the Judge that the plaintiff will not succeed cannot be a ground for rejection of the plaint. Learned Senior Advocate further placed reliance in the matter of Lukeshwar and others v. Dhebar Singh and others2 in which the Madhya Pradesh High Court has held that "a plaint can be rejected only when on reading of the plaint itself, either it does not disclose a cause of action or it appears to be barred by some law. The Courtsare not entitled to travel beyond the pleadings of the plaint. If the defendants plead that the suit is barred by some law because of some additional factors pleaded by him, then he has to establish these factors". Learned Senior Advocate reliance the matter Ghanshyamdas Gupta v. Shivaldasand others3 in which it has been held by the Madhya Pradesh High Court that plurality of ownership is not a disqualification for filing petition for eviction under Section 23-A (a) of the Act and co-owner alone is entitled for eviction under Section 23-A (a) of the Act.

On the other hand, the order impugned is supported on behalf of respondent and learned counsel for the respondent submitted that the present revision is not maintainable in terms of Section 23-E of the Act read with Section 115 of the Code. Learned counsel further submits that the scope of interference in revision is limited and in accordance with Section 23-E of the 1 2006 AIR SCW 863 22000(3)M.P.LJ.135 ,31988M.P.LJ.260 / f ^ ^\)J '^•-^ Act, High Courts are required to exercise the same pow&r-afid follow the same procedure as it does for disposal of a revision under Section 115 of the Code. Proviso to sub-section (1 ) of Section 115 of the Code restricts & limits the revisional jurisdiction and the revisional jurisdiction may only be exercised the order is made in favour of the petitioner and the suit or other proceedings would be finally disposed of. But in the instant case, if the revision is allowed, then the proceeding would not be disposed of, but the proceeding before the Rent Controlllng Authority would continue. Learned counsel also submits that the present respondent has filed an application under Order 7 Rule 1 1 of the Code to which while filing reply, the present petitioner has categorically admitted that he is not the original landlord and the original landlord was Shakina Bi, his mother, who died leaving behind three daughters & three sons including the petitioner. It was also alleged by the petitioner that originally the accommodation was given to the father of the respondent and the present respondent is the only legal representative of deceased Shakkulal Gupta, father of the respondent. Learned counsel further submits that on the basis of additional allegations made by the present petitioner, the suit is not maintainable, the Rent Controlling Authority has rightly allowed the petition and dismissed the suit.

On careful examination of the petition for eviction filed on behalf of the petitioner it reveals that the petitioner is landlord and the respondent is tenant of the suit premises. In his reply to the application under Order 7 Rule 1 1 of the Code the petitioner has admitted the fact that the original tenant was Shakina Bi, mother of the petitioner. The petitioner is having two brothers & three sisters, he is co-owner of the property and has succeeded the same on the death of his mother. The respondent alone is the tenant and he is the successor of deceased tenant Shakkulal Gupta. It is not disputed that the petitioner is successor of deceased Shakina Bi, mother of the petitioner, and \ is having right over the rented accommodation, he is not the sole owner but partial owner, therefore, the petitioner is competent to file pefttterTfor eviction as aco-owner or partial owner of the property.

As regards maintainability of the revision, any order passed by the Rent Controlling Authority may only be challenged under Section 23-E of the Act. Section 23-E of the Act envisages procedure and power of the High Court in the course of hearing of revision. The provisions of Section 23-E of the Act read as follows:- "23-E. Revision by High Court.—(1) Notwithstanding anything contained in section 31 or section 32, no appeal shall lie from any order passed by the Rent Controlling Authority under this Chapter. (2) The High Court may, at any time "suo motu" or on for the purpose of the application of any person aggrieved, satisfying itself as to the legatity, propriety or correctness of any order passed by or as to the regularity of the proceedings for and examine the of the Rent Controlling Authority, call record of the case pending before or disposed of by such Authority and may pass such order in revision in reference thereto as it thinks fit and save as otherwise provided by this section, in disposal of any revision under this section, the High Court shall, as far as may be, exercise the same powers and follow the same procedure as it does for disposal of revision under section 115 of the Code of Civil Procedure, 1908 (V of the Rent Controlling 1908) as if any such proceeding of Authority is of a Court subordinate to such High Court: Provided that no powers of revision at the instance of person aggrieved shall be exercised unless an application is presented within ninety days of the date of the order sought to be revised.

Sub-section (1) of Section 115 of the Code gives power to the High Court to examine the legality & propriety in terms of clauses (a), (b) & (c) of that Section relating to the case decided by any Court subordinate to such Court, but the proviso to sub-section (1) of Section 115 of the Code restricts the power of the High Court to interfere in exercise of revisional jurisdiction relating to any order passed in the course of a suit or other proceeding. The High Court is competent to exercise the revisional jurisdiction in terms of clauses (a), (b) & (c) of sub-section (1) of Section 115 of the Code in relation to the case decided by the Courts subordinate to High Court and the High Court is also competent to exercise the revisional jurisdiction in terms of proviso to sub-section (1) of Section 115 of the Code in relation to the order passed by the subordinate Court in the court of a suit or ofhei-proceeding. Proviso to sub-section (1) of Section 115 of the Code is related to the order passed in the course of a suit or other proceeding. The present case does not fall under the proviso to sub-section (1) of Section 115 of the Code, but it falls under sub-section (1) of Section 115 of the Code and the revision filed on behalf of the petitioner is competent.

Admittedly, the petitioner has not alleged in his revision petition or reply to the application filed under Order 7 Rule 11 of the Code that he is not owner or co- owner or that the respondent is not the tenant.

In the case of Mayar (supra), the Apex Court has held that the Courts are required to examine the question of tenability under Order 7 Rule 11 of the Code on the basis of the allegations made in the plaint and not on the basis of the allegations made in the written statement. Paras 10 & 11 of the judgment read thus, "10. Under Order VII, Rule 11of the Code, the Court has jurisdiction to reject the plaint where it does not disclose a cause of action, where the relief claimed is undervalued and the valuation is not corrected within a time as fixed by the Court, where insufficient court fee is paid and the additional court fee is not supplied within the period given by the Court, and where the suit appears from the statement in the plaint to be barred by any law. Rejection of the plaint in exercise of the powers under Order VII, Rule 11 of the Code would be on consideration of the principles laid down by this Court.

11. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII, Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not in certain cases where the pleadings the evidence except fraud, willful relied on are in regard to misrepresentation, default, undue influence or of the same nature. So long as the plaint djscloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. the averments made in the plaint, as has been noticed by us, we disclose the cause of action and, therefore, the High Court has rightly said In the present case, that the powers under Order VII, Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff- appellants. "

Copy of the plaint and reply of the application filed under Order 7 Rule 11 of the Code clearly show that the plaintiff is owner, landlord and co-owner of the rented premises and the respondent is tenant of the suit premises. But learned Rent Controlling Authority has dismissed the suit on the basis of the allegations made in the written statement and the application filed under Order 7 Rule 11 of the Code. The Rent Controlling Authority has exceeded 10 the jurisdiction vested on it and thereby committed illegality. The order impugned is not sustainable and deserves tobe set aside.