ORDER
R.C. Lahoti, J.
1. This is a revision preferred under section 23-E of M.P. Accommodation Control Act, 1961 as amended by Act No. 27/83 by the landlord aggrieved by an order of the Rent Controlling Authority, Gwalior dismissing his application for ejectment of the tenant/non-petitioner under section 23-A(b) of the Act.
2. It is not disputed that the suit accommodation is non-residential. It is held by the defendant/non-petitioner tenant of the plaintiff/petitioner. The plaintiff was in Government Service wherefrom he has retired. He has an unmarried daughter by name Mangala, of about 25 years of age.
3. The case of the petitioner has been that the daughter does not any longer wish to marry and the plaintiff and his daughter Mangala, both being unemployed for the present, propose to start their own business of stationery and books in the suit accommodation for which purpose they do not have any other accommodation of their own available within the Corporation limits of Gwalior. The defendant/non-petitioner having been allowed leave to defend contested the suit by denying the necessity pleaded by the plaintiff/petitioner. It was also submitted that an earlier suit filed by the plaintiff/petitioner before Civil Court seeking relief of ejectment on an identical ground was withdrawn without permission of the Court under section 12 of the M.P. Accommodation Control Amendment Act, 1983 and hence the present proceedings before the Rent Controlling Authority were barred.
4. The trial Court having tried the case on its merits arrived at a finding that the suit accommodation was genuinely needed by the plaintiff for starting the stationery and books business of himself and his unmarried daughter. Still, the relief of ejectment has been denied on two grounds, namely, that the plaintiff failed in proving that he was owner to the suit accommodation and that the proceedings were barred under section 12 of the Amendment Act.
5. At the hearing, the learned counsel for the landlord/petitioner has challenged the-order of the authority below as erroneous on the two counts decided against him while the learned counsel for the tenant/non-petitioner has sought to sustain the impugned order not only by supporting the reasonings advanced by the authority below but also by submitting that the tenancy of the defendant/non-petitioner having not been terminated in accordance with section 106 of the Transfer of Property Act, the proceedings were premature and not maintainable.
6. Three points arise for consideration:- (i) whether the proceedings before the Rent Controlling Authority were barred in view of the suit before the Civil Court having been withdrawn without reserving liberty of seeking eviction afresh before the Rent Controlling Authority; (ii) whether it was necessary for the Rent Controlling Authority to have recorded a finding on the question of ownership of the suit accommodation of the landlord; (iii) whether a notice under section 106 of the Transfer of Property Act terminating the tenancy of the tenant was an essential pre-requisite to the institution of the proceedings for eviction before the Rent Controlling Authority.
7. As the documents filed by the parties show and as has not been disputed, the plaintiff had filed a suit for ejectment of the tenant/non-petitioner before the Civil Court on 2-11-1980. The Amendment Act came into force on 16-8-1983. The suit before the Civil Court was withdrawn on 254-1984. The order dated 25-4-1984 shows that liberty of instituting proceedings afresh was not reserved. Still the first contention raised by the learned counsel for the defendant/non-petitioner has to fail for two reasons to be examined hereinafter.
8. The objection is based on a fallacy as to the language of section 12 of the Amendment Act. It is interesting to compare the phraseology of the provisions contained in Order 23, Rule 1 of the Civil Procedure Code with those contained in section 12 of the Amendment Act. Order 23, Rule 1, sub-rule (3) contemplates the plaintiff being granted a permission by the Court in the two contingencies mentioned therein; a permission “to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim”. Sub-rule (4) provides for a specific prohibition. Permission of the Court having not been secured in the matter of reserving liberty to institute a fresh suit, any fresh suit in respect of the same subject-matter or part of the claim is barred. Section 12 of the Amendment Act does speak of withdrawing the suit in relation to relief for eviction of tenant on the ground of bona fide requirement but does not provide for any permission of the Court in reserving liberty to institute similar proceedings before the Rent Controlling Authority. A disability from initiating proceedings afresh in the absence of liberty having been given by the Court as is provided by sub-rule (4) of Rule 1 of Order 23 is also not to be found in the language of section 12. The reason for distinction is apparent. The object underlying sub-rules (3) and (4) of Rule 1 of Order 23 is that nobody should be vexed twice with similar proceedings and multiplicity of proceedings should be avoided unless permitted by the Court for the reasons to be recorded. The object underlying section 12 of the Amendment Act is entirely different. This amendment was brought with the object of providing a special jurisdiction and a summary procedure for disposal of cases seeking eviction on the ground of bona fide requirement. The Legislature was benevolent to such landlords and proposed to give them a choice of withdrawing from the long-drawn procedure of pursuing eviction proceedings before a Civil Court, a forum already chosen by them, and avaling benefit of speedier remedy under the Amendment Act. The only mischief sought to be avoided was that the proceedings should not be parallel before two forums. If a landlord chose to withdraw earlier initiated proceedings under section 12(1)(e) or (f) of the Act before the Civil Court, in the wake of section 12 of the Amendment Act, it was understood that he was doing so with the idea of approaching the Rent Controlling Authority. The Legislature deliberately abstained from providing for the necessity of securing leave to reserve liberty to re-initiate the proceedings. Therefore, if the landlord simply withdrew his suit for eviction pending before the Civil Court on the date of coming into force of the Amendment Act without reserving liberty to institute proceedings afresh before the Rent Controlling Authority the proceedings under Chapter III-A of the Act would not be barred.
9. There is yet another reason why the proceedings should be held to be valid and maintainable. What is prohibited by sub-rule (4) of Rule 1 of Order 23, in the event of withdrawal without liberty, is a fresh suit in respect of the same subject-matter or part of the claim. To be the same subject-matter or the same claim the cause of action must remain the same, in suits seeking ejectment on the ground of genuine requirement, it is the necessity prevailing on the date of the suit that is to be judged. Before the Civil Court, the plaintiff was canvassing his own requirement of starting a business on the date of the suit i.e., 2-11-1980. Before the Rent Controlling Authority the landlord has come up with a case of genuine requirement of himself and unmarried daughter on the date of the application i.e., 3-3-1984. It cannot, therefore, be said that the application before the Rent Controlling Authority is in respect of same subject-matter (or same cause of action) as was before the Civil Court. Even if the provisions of sub-rule (4) of Rule 1 of Order 23 were to be attracted or even if the construction as placed by learned counsel for non-petitioner were to be placed on section 12 of the Amendment Act, even then the proceedings before the Rent Controlling Authority were not barred. The Rent Controlling Authority was not justified in taking the view which it did.
10. The next question is of ownership of the landlord. Here again, it will be useful to trace the legislative history of the provision.
11. Clauses (e) and (f) of sub-section (1) of section 12 of the M.P. Accommodation Control Act, 1961 provided for proof of ownership as an essential prerequisite to a landlord seeking ejectment of the tenant from residential or non-residential accommodation. This was done by introducing the phrase – “if he is owner thereof”, in the language of the two clauses. The Amendment Act No. 27/83, (which came into force on 16-8-1983) omitted clauses (e) and (f) from the body of section 12(1) and re-enacted them in Chapter III-A of the Act as clauses (a) and (b) of section 23-A. A comparative reading of the two provisions indicates that the language of the two provisions has been retained substantially as the same except that the phrase “if he is owner thereof” was deleted from both the clauses.
12. The reason for this departure in the language of the two provisions is apparent. A Civil Court could be excepted to adjudicate upon questions relating to ownership even in an eviction suit but the Rent Controlling Authority having been vested with a summary jurisdiction was not excepted to enter into such fine questions relating to ownership even for the limited purpose of adjudicating upon the question of eviction. The intention of the Legislature has been to confer on R.C.A.’s jurisdiction of adjudicating upon simple landlord-tenant-eviction disputes without requiring any proof by them into questions of title. By virtue of Amendment Act No. 7/85 (which came into force on 26-4-1985), the original clauses (e) and (f) in section 12(1) of the Act have been restored along with the phrase “if he is the owner thereof” finding place in the body of the two clauses while clauses (a) and (b) in section 23-A in Chapter III-A of the Act have been retained as they were that is without the phrase “if he is owner thereof” finding place in the language used.
New section 23-J has been added in the Chapter III-A defining the term “landlord” for the purpose of this Chapter which has the effect of limiting the availability of clauses (a) and (b) of section 23-A to special categories of landlord contemplated by section 23-J. The effect of the several amendments in nutshell is that while seeking eviction of the tenant on the ground of genuine requirement, a landlord of section 23-J category is not required to prove his ownership while the landlord in the general category required to file a civil suit before a Civil Court is required to prove also his ownership as to the suit accommodation. The Rent Controlling Authority was not, therefore, justified in negativing the case of the plaintiff/petitioner on the ground that he failed in proving his ownership.
13. The last contention to be examined is the effect of Chapter III-A of the Accommodation Control Act on the applicability of section 106 of the Transfer of Property Act.
14. In V. Dhanapal Chettiar v. Yesodai Ammal, 1979 M.P.L.J. (S.C.) 719 = AIR 1979 SC 1745, a seven Judges Bench of the Apex Court held
“In order to get a decree or order for eviction against a tenant under any State Rent Control Act it is not necessary to give notice under section 106, T.P. Act. Determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage.”
The learned counsel for tenant/non-petitioner has forcefully submitted that the enactment of Chapter III-A in M.P. Accommodation Control Act, 1961 by the Amendment Act, 1983 has tilted the balance and especially the enactment of sub-section (3) of section 23-D finding place in Chapter III-A of the Act has virtually taken away the protection available to the tenant by providing that the requirement of the landlord with reference to clause (a) or (b) of section 23-A shall be presumed to be bona fide if the landlord be one of the categories referred to in section 23-J. The learned counsel submits that the rule as to burden of proof having been reversed, the law instead of protecting the tenant, protects the landlord and hence the protection available by section 106 of T.P. Act to the tenant should be reapplied.
15. The argument though attractive, is simply ingenious and betrays lack of merit on a little probe. In V. Dhanapal Chettiar (supra) their Lordships have held that so long as eviction against tenant was governed by any State Rent Control Act, the provisions of section 106, T.P. Act were rendered a mere surplusage because the tenancy would come to an end not by its termination through a notice but only by virtue of a decree of eviction. In spite of the enactment of Chapter III-A in the Accommodation Control Act, the position remains the same. The tenancy of a tenant does not come to an end unless determined by an order of eviction to be passed by the Rent Controlling Authority. Moreover, as held by this Court in Kamal Kishore Sharma v. Smt. Tarabai, Civil Rev. No. 27/89, decided on 25-8-1989, sub-section (3) of section 23-B does not shift the entire burden of proof on the tenant nor does it make obligatory for the tenant to lead evidence before the landlord has led, but it is merely a rule of evidence with limited field to operate. It only enables the requirement of the landlord being presumed to be bonafide provided that the factum of requirement itself was made out. Thus, the law laid down by the Apex Court in V. Dhanapal Chettiar (supra) continues to apply to the eviction disputes filed under Chapter III-A of the M.P. Accommodation Control Act, 1961 and the tenant cannot be heard to say that his tenancy was not determined unless a valid notice under section 106 T.P. Act served upon him.
16. For all the foregoing reasons, it is clear that the Rent Controlling Authority having found the genuine requirement of the landlord in respect of the suit accommodation proved, could not have denied the order of eviction on the grounds on which it did, nor can the order be supported on the additional reasonings advanced by the learned counsel for the tenant/non-petitioner before this Court.
17. The revision is allowed. The impugned order of the Rent Controlling Authority dismissing landlord/petitioner’s application for eviction is set aside and instead it is ordered that the tenant/non-petitioner shall be evicted. Six months’ time calculated from today is granted to the tenant/non-petitioner to vacate the premises and hand over vacant and peaceful possession to the landlord/petitioner. The tenant/non-petitioner shall be obliged to clear all the arrears of rent till this date within a fortnight and shall also be obliged to pay or deposit for payment to the landlord, the rent falling due month by month by the 15th day of each month calculated at the rate at which it was previously paid to the landlord. Looking to the nature of the controversy arising between the parties they are left to bear their own costs throughout.