Sai Developers Vs. Sanjay Kumar and ors. - Court Judgment

Excerpt:
- madhya pradesh uchcha nyayalaya (khand nyaypeeth ko appeal) adhiniyam (14 of 2006)section 2 & m.p. general clauses act, 1957, section 12: [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] appeal to division bench against judgment of single judge - application for restoration/revival of letters patent appeal under clause 10 - held, the legal effect of the 1981 adhiniyam was that with effect from 1st july 1981, all appeals under clause 10 of the letters patent were abolished except appeals which were pending before high court on date immediately preceding date of commencement of 1981 adhiniyam on 1st july 1981. it will be clear from sub-section 92) of section 1 of the 2005 adhiniyam that the 2005 adhiniyam was to come into force with retrospective effect from first day of july, 1981 i.e., with effect from the date from which the appeals under clause 10 of the letters patent were abolished by the 1981 adhiniyam. it will be further clear from section 2 of the 2005 adhiniyam that under the 2005 adhiniyam, appeal was provided for only from a judgment and order passed by a single judge in exercise of original jurisdiction under article 226 of the constitution of india to a division bench comprising of two judges of the high court and no appeal was provided for from the judgment and order passed by a single judge of high court in exercise of any other jurisdiction of the high court. it will also be clear from section 4 of the 2005 adhiniyam that sub-section (1) of section 4 repealed the 1981 adhiniyam. therefore by the repeal of the 1981 adhiniyam by section 4(1) of 2005 adhiniyam, appeals under clause 10 of the letters patent against judgment and decree passed by the single judge in exercise of its jurisdiction under section 96 of the code of civil procedure would not be revived as 2005 adhiniyam does not provide for any such revival. a reading of section 12 of the m.p. general clauses act, 1957, would show that the legislature must expressly state that the repealed act is either wholly or partially revived. where an act is passed repealing a repealing enactment, it shall not be considered as reviving any enactment previously repealed unless words are added reviving that enactment. in the absence of any express or implicit provision in the 2005 adhiniyam providing for appeal from a judgment, decree or order passed by single judge under section 96 of c.p.c., to a division bench, by virtue of the repeal of the 1981 adhiniyam, appeal under clause 10 of the letters patent from a judgment and decree passed by single judge in exercise of appellate jurisdiction under section 96 of c.p.c., are not revived. - 4. under section 38 of the act, no landlord either himself or through any person purporting to act on his behalf shall without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the accommodation let to him.orders.k. pande, j.1. this revision under section 115 of cpc is directed against the order dated 26-3-2003, passed by adj, burhanpur in m.ca. no. 3/2002.2. non-applicant nos. 1 to 5 instituted c.s. no. 40-a/2002 in the court of 3rd civil judge, class ii, burhanpur for injunction seeking relief of restoration of the electricity supply and other incidental relief. defendant applicant filed application under order 7 rule 11, cpc stating inter alia that the matter relates to restoration of electricity supply, therefore, the application under section 38 of m.p. accommodation control act (hereinafter referred to as the 'act' for convenience) before the rca alone could be filed and the jurisdiction of civil court under section 45 of the act is barred. plaintiffs/non-applicants resisted the application. it has been stated that there is no dispute between the tenant-plaintiffs/non-applicant nos. 1 to 5 and landlord-defen-dant/non-applicant nos. 9 and 10 hafiz shakir husain and hafij jakir husain respectively. due to internal dispute amongst the partners of defendant/applicant, m/s. sai developers partnership firm, one of its partner pawan kumar has got disconnected the electricity supply by sending the letter to electricity board. the civil judge, vide order dated 2-8-2002 allowed the application and held that under section 45 of the act, the suit as filed is barred. being aggrieved the plaintiffs/non-applicant nos. 1 to 5 preferred m.c.a. no. 3/2002 in the court of adj. the appeal was allowed vide impugned order and application under order 7 rule 11, cpc filed by defendant/applicant has been dismissed. the civil judge has been directed to proceed further with c.s. no. 40-a/2002.3. on filing application under order 7 rule 11, cpc by the defendant/applicant, the plaintiff/non-applicant nos. 1 to 5 filed a reply to the effect that there is no dispute with landlord non-applicants - hafij shakir husain and hafiz jakir husain. due to internal dispute, one of the partner of defendant/ applicant has sent a letter to the electricity board, thereupon the electric supply has been disrupted. court below in the impugned order dated 26-3-2003 has categorically held that in essence the suit filed by the plaintiff/non-applicant nos. 1 to 5 is against the defendant/applicant and its partner. there is no dispute with landlord hafij shakir husain and hafij jakir husain. in the circumstance, the court below set aside the order passed by the civil judge and dismissed the application under order 7 rule 11, cpc.4. under section 38 of the act, no landlord either himself or through any person purporting to act on his behalf shall without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the accommodation let to him. if a landlord contravenes the provisions of sub-section (1), the tenant may make an application to the rent controlling authority complaining of such contravention. therefore, where there is a dispute inter se between the landlord and tenant as to the cutting off or withholding essential supply or service, then only section 38 of the act is attracted and bar under section 45 applies. facts of judgment rakesh kumar v. ramnath, 1983 mprcj note 176 are to the effect. where there is no dispute inter se between the landlord and tenant the suit for injunction declaration as against 3rd party shall always lie to civil court.5. therefore, the order impugned passed by adj in m.c.a. no. 3/2002 does not suffer from any material irregularity. revision fails and is dismissed. parties to bear their costs.

Judgment:
ORDER

S.K. Pande, J.

1. This revision under Section 115 of CPC is directed against the order dated 26-3-2003, passed by ADJ, Burhanpur in M.CA. No. 3/2002.

2. Non-applicant Nos. 1 to 5 instituted C.S. No. 40-A/2002 in the Court of 3rd Civil Judge, Class II, Burhanpur for injunction seeking relief of restoration of the electricity supply and other incidental relief. Defendant applicant filed application under Order 7 Rule 11, CPC stating inter alia that the matter relates to restoration of electricity supply, therefore, the application under Section 38 of M.P. Accommodation Control Act (hereinafter referred to as the 'Act' for convenience) before the RCA alone could be filed and the jurisdiction of Civil Court under Section 45 of the Act is barred. Plaintiffs/non-applicants resisted the application. It has been stated that there is no dispute between the tenant-plaintiffs/non-applicant Nos. 1 to 5 and landlord-defen-dant/non-applicant Nos. 9 and 10 Hafiz Shakir Husain and Hafij Jakir Husain respectively. Due to internal dispute amongst the partners of defendant/applicant, M/s. Sai Developers Partnership Firm, one of its partner Pawan Kumar has got disconnected the electricity supply by sending the letter to Electricity Board. The Civil Judge, vide order dated 2-8-2002 allowed the application and held that under Section 45 of the Act, the suit as filed is barred. Being aggrieved the plaintiffs/non-applicant Nos. 1 to 5 preferred M.C.A. No. 3/2002 in the Court of ADJ. The appeal was allowed vide impugned order and application under Order 7 Rule 11, CPC filed by defendant/applicant has been dismissed. The Civil Judge has been directed to proceed further with C.S. No. 40-A/2002.

3. On filing application under Order 7 Rule 11, CPC by the defendant/applicant, the plaintiff/non-applicant Nos. 1 to 5 filed a reply to the effect that there is no dispute with landlord non-applicants - Hafij Shakir Husain and Hafiz Jakir Husain. Due to internal dispute, one of the partner of defendant/ applicant has sent a letter to the Electricity Board, thereupon the electric supply has been disrupted. Court below in the impugned order dated 26-3-2003 has categorically held that in essence the suit filed by the plaintiff/non-applicant Nos. 1 to 5 is against the defendant/applicant and its partner. There is no dispute with landlord Hafij Shakir Husain and Hafij Jakir Husain. In the circumstance, the Court below set aside the order passed by the Civil Judge and dismissed the application under Order 7 Rule 11, CPC.

4. Under Section 38 of the Act, no landlord either himself or through any person purporting to act on his behalf shall without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the accommodation let to him. If a landlord contravenes the provisions of Sub-section (1), the tenant may make an application to the Rent Controlling Authority complaining of such contravention. Therefore, where there is a dispute inter se between the landlord and tenant as to the cutting off or withholding essential supply or service, then only Section 38 of the Act is attracted and bar under Section 45 applies. Facts of judgment Rakesh Kumar v. Ramnath, 1983 MPRCJ Note 176 are to the effect. Where there is no dispute inter se between the landlord and tenant the suit for injunction declaration as against 3rd party shall always lie to Civil Court.

5. Therefore, the order impugned passed by ADJ in M.C.A. No. 3/2002 does not suffer from any material irregularity. Revision fails and is dismissed. Parties to bear their costs.