SHYAMSINGH THAKUR Vs. SUSHRI MULYABAI

JUDGEMENT

(1.) THIS. is defendant's Second Appeal under Section 100 of the Code of Civil Procedure. It is directed against the judgment and decree dated 9-5-2005 passed by learned Second Additional District Judge, Ujjain in Civil Appeal No. 41-A/2005 confirming the judgment and decree dated 20-1-2005 passed by learned First Civil Judge, Class-II, Ujjain in Civil Suit No. 167-A/2004 discarding other matters and directing eviction of the defendant from the tenanted premises specified in plaint on the ground of bonafide requirement under Section 12 (1) (e) of the M. P. Accommodation Control Act, 1961 ("act" hereafter ).

(2.) THE respondent/plaintiff filed a suit against the appellant/defendant on 9-11-1998 for arrears of rent, eviction and mesne profits relating to tenanted premises. Decree for eviction was prayed on the grounds as envisaged under Sections 12 (1) (a), (c) and (e) of the Act. The plaintiff also specifically pleaded that she was a divorcee as her husband had divorced her according to Chhod Chhutti mode prevalent in their society by custom. The defendant resisted the suit. It was also stated by him that in view of the plaintiffs special category of divorced wife landlord within the meaning of Clause (iii) of Section 23-J of the Act, Civil Court's jurisdiction to entertain the suit stood barred under the provisions of Section 11-A read with Section 45 of the Act. The learned Trial Court framed issues, received evidence and at the conclusion reached the finding that the jurisdiction of the Civil Court was not barred and ground of eviction only under Section 12 (1) (e) of the Act could be proved. Accordingly decree for eviction followed. The defendant took the matter to appeal under Section 96 of the Code of Civil Procedure. The learned Lower Appellate Court confirming the decree passed by the Trial Court, dismissed it. Hence this second appeal. It has been admitted for final hearing on the following substantial question of law: Whether both the Courts have committed an error of law by holding that the plaintiff-respondent can prosecute the eviction proceedings before the Civil Court even though she comes within the definition of Section 23-J of the M. P. Accommodation Control Act ?

(3.) LEARNED Counsel for the appellant arguing in support of the appeal contended that the learned Courts below failed to appreciate relevant provisions of law and were thus in error in arrogating to themselves the jurisdiction which they did not possess. In his support he relied upon 2003 (1) JLJ 85 (SC) (Dhannalal v. Kalawati Bai and Ors.) and 2006 (2) M. P. H. T. 300 : 2006 (1) MPIJ 231 (Nandlal v. Mangibai ). The learned Counsel for the respondent in his anxiety to get the impugned decree retained, in counter argument submitted that the status of the plaintiff being a special landlord has wrongly been decided by the Courts below and she in fact is an ordinary landlord. He submitted that though cross-objections has not been filed by the respondent/plaintiff yet in the circumstances in view of the provisions of Order XLI Rule 33 of the Code of Civil Procedure such an objection can be raised on behalf of the respondent in the fashion chosen by him. I may mention that in the plaint, the pleading of the plaintiff/respondent is there specifically mentioning her as a divorced wife landlord and it has been followed by her relevant evidence, therefore, she cannot change her position and she is estopped from doing so. The learned Counsel for the respondent in the alternative supported the impugned judgment relying upon 1998 (1) JLJ 311 (FB) (Ashok Kumar v. Baboolal and Anr.)