HIGH COURT OF MADHYA PRADESH : JABALPUR.
C.R.No.20/2013 Modan Lal Vohra and otheRs.Vs Smt.
Nirmala Dubey.
PRESENT : Hon’ble Shri Justice K.K.Trivedi.J.Shri M.L.Patellearned counsel for the applicants (Non-applicants before RCA).Shri D.K.Dixit, learned counsel for respondent (Applicant before RCA) ORDER
(16.4.2013) This revision under Section 23-E(2) of the M.P.Accommodation Control Act, 1961 (hereinafter referred to as the Act for brevity) has been filed seeking to challenge order dated 17.12.2012 passed in Case No.2-A/6/2011-2012 by the Rent Controlling Authority, Betul (hereinafter referred to as the RCA for short).2: Facts giving rise to filing of this revision are that the respondent claiming herself to be a specified landlord as defined under the Act, made an application under Section 23-A of the Act, seeking eviction of the applicants.
It was stated that the respondent was a widow.
Her late husband has obtained a lease of the land from the State Government and constructed a small hotel and restaurant.
Since the husband of the respondent expired untimely, the hotel was given on lease to the applicant No.1, who was the employee working in the said hotel from the time of the husband of the respondent.
The applicant No.1 was paying Rs.5,000/- per 2 month to the respondent, but all of a sudden the said payment was stopped.
Since the son of the respondent has become adult and capable of running her business, the demise premises is required for the bonafide need of the respondent and her son.
3: Upon making of this application, the RCA issued notice to the applicants who were served.
Under the Scheme of the Act, the applicants were required to move an application under Section 23-C of the Act seeking leave of the Court to defend.
It appears that instead of making appropriate application in that respect when the notice of the eviction application was served on the applicants, some sort of objection was filed by them on 31.5.2012.
However, the objection was not with respect to the bonafides of requirement of the respondent, but it was said that such an application for eviction was not maintainable in view of the provisions of M.P.Parisar Kirayedari Adhiniyam, 2010.
Such an objection was rejected and an appeal was filed by the applicants in the Court of District Judge.
In response to the notice of the appeal issued to the respondent, the fact was brought to the notice of the appellate Court that the leave to defend as required to be obtained by the applicants was not obtained from the RCA in terms of the Scheme of the Act and as such, the appeal was also not maintainable.
Some sort of written argument was filed before the Additional District Judge Betul by the applicants in the said appeal wherein they have said that no such leave was required to be obtained and such an appeal under Section 31 of the Act could have been filed before the Court.
4: Though no such leave to defend was obtained by the applicants, but they raised the objections, and contended 3 that they were required to be heard.
The RCA considering all these facts, came to the conclusion that since all the objection with respect to the maintainability of the eviction applications were already decided on 5.7.2012 and appeal against such an order was already rejected, the applicants have not obtained the required leave to defend, therefore, the applicants were not to be heard and, ultimately, allowed the eviction application by the impugned order.
This revision is directed against such an eviction order.
5: It is, vehemently, contended by learned counsel for applicants that in fact application seeking leave to defend was already filed by the applicants as is clear from the application available on record, said to be filed on 31.5.2012.
This application was never taken into consideration.
It is, thus, contended that the application itself was not considered and, therefore, no opportunity of defence was granted to the applicants in appropriate manner.
Copy of the application is said to be obtained and the same has been produced as Annx.A/1 with this revision.
From this, it is contended that the RCA has committed grave error in deciding the claim of the applicants and in fact order passed by the RCA is a nullity.
6: Per contra opposing such submission made by learned counsel for the applicants, Shri D.K.Dixit, learned counsel for the respondent has pointed out that such an application dated 31.5.2012 was never filed before RCA and the same should not be included in record.
Taking this Court to the record of the RCA, it is pointed out that immediately a complaint was made before the RCA by the respondent on 28.1.2013, the moment she came to knot that such application dated 31.5.2012 has been filed along with the revision petition.
From the record it is clear that 4 such a document was mischievously inserted in the record and originally it was never presented.
Taking this Court to the submissions made in this respect before the Additional District Judge while hearing the appeal, it is pointed out that the objection filed on 31.5.2012 was with respect to the maintainability of the eviction application and not an application seeking leave to defend.
It is, thus, contended that a perjury is committed by the applicants by placing a document on records of this Court, which was never produced before the RCA and it has been inserted by manipulation of the record of RCA.
Thus, it is contended that in fact not only the revision is liable to be dismissed, but the applicants are liable to be punished for committing perjury with this Court.
7: While entertaining this revision, this Court has directed production of the record of the RCA.
The entire record is seen.
The order sheet dated 31.5.2012 indicates that an objection was filed by the applicants through their counsel and the case was fixed for reply of the said objection.
The proceedings indicate that reply to such an objection was filed on 18.6.2012.
The case was fixed for hearing on the said objection on 28.6.2012 on which date, the applicants filed their written arguments.
The case was thereafter posted for orders on such an objection which was decided on 5.7.2012.
The entire objection of the applicants was with respect to maintainability of the eviction application and not with respect to seeking any leave to defend as prescribed under Section 23-C of the Act.
This makes it clear that the application dated 31.5.2012 was subsequently inserted in the records.
One more reason to give such a finding is that the application dated 31.5.2012 was neither stamped not notorised in the manner it should have been.
There was no endorsement 5 that a copy of the same was delivered to the opposite side.
The written arguments submitted by the applicants herein was also not in respect of seeking leave to defend as is clear from documents already available on record at pages 19 and 20 of the RCA record.
A date is mentioned in the said document by the presiding officer of the RCA which tallies with the date of presentation of said written arguments from the order sheets.
Thus, in fact, the applicants have never applied for grant of leave to defend.
On the other hand they were trying to oppose the application of the respondent on fliMs.grounds.
8: While relying on such a document, the applicants have tried to obtain an interim stay from this Court on 21.1.2013.
Had it not been so, such a document would not have been presented with the revision petition.
Merely because a certified copy of the same was obtained from the RCA records, the document would not become genuine unless it is demonstrated that the same was presented before the RCA at the relevant time.
The entire decision is rendered by the RCA holding that the applicants have not applied for grant of leave to defend and in terms of the provisions of the Act, they were not to be heard.
Thus, it is clear that in fact not only the manipulation in the record of the RCA is done by the applicants, but they have tried to mislead this Court by placing reliance in such a manipulated document.
The Apex Court in the case of S.P.Chengalvaraya Naidu (dead) by L.Rs versus Jagannath (dead) by L.Rs [1994 (1) SCC 1]., has categorically held that on suppression of material facts or on a misrepresentation if an order is obtained from the Court of law, the said order would be obtained by fraud with the Court and, therefore, would amount to a nullity.
The Division Bench of this Court in the case of Shivam 6 Prathmik Upbhokta Sahkari Bhandar versus State of M.P.and others W.A.No.397/2010, decided on 26.2.2013, has reached to the conclusion that such a litigant is not entitled to any relief from this Court.
9: This being so, in view of the definite reasons recorded herein above, this revision fails and is hereby dismissed.
However, it would be open to the respondent to initiate proceedings against the applicants in the appropriate Court of law, if so advised, for prosecution of the applicants.
10 : The revision fails and is hereby dismissed with costs.
The counsel's fee is quantified to Rs.10,000/- if pre- certified.
(K.K.TRIVEDI) Judge A.Praj.
7 HIGH COURT OF MADHYA PRADESH : JABALPUR.
C.R.No.20/2013 Modan Lal Vohra and otheRs.Vs Smt.
Nirmala Dubey.
ORDER
Post it for /04/2013 (K.K.Trivedi) Judge /04/2013