MAHESH KUMAR Vs. NEELAM RASTOGI

JUDGEMENT

(1.) WHETHER the Court has applied the statutory presumption correctly, submits Shri R.D. Jain, counsel for the respondent, is the point to which I should limit scrutiny of the impugned order. I fully agree with him. Still, unfortunately, the petition must be allowed and the other contentions also of Shri Jain must be repelled for reasons to follow. Counsel has relied on a Division Bench decision of this Court in the case of N.P. Nigam, Gwalior 1977 MPLJ 562 which, in my opinion, was a labour spent for nothing as the proposition earlier alluded, on the scope of judicial inquiry in this Court, has been accepted by me.

(2.) SHRI Jain has advanced forceful arguments and did his best to convince me that no interference with the impugned order is warranted because it meets the requirements of sub-section (3) of Section 23-D of the MP Accommodation Control Act, 1961 (for short 'the Act'). He also submits that the provisions of Rule 10 of Order 8, CPC, on the basis of which the impugned order is passed, imperviously seals the order from judicial challenge. Unfortunately, both contentions are meritless.

(3.) IN the instant case the suit for eviction has been decreed without reference to any material on which satisfaction could be arrived at by the Authority that the requirement of Section 23-A(b) had been duly complied with to invest him with jurisdiction to pass the impugned order. The sole consideration which prevailed with the Authority in decreeing the suit is the fact that on 26.8.1985 leave to defend was granted and on 4.9.1985 written statement had to be filed which was not done. Because no written statement was filed on 4.9.1985, immediately the next day, on 5.9.1985, the impugned order decreeing the suit was passed. What I find reading the impugned order, surprisingly, is merely the presumption that nothing was proved to disentitle the widow, who had filed the suit to claim relief under Section 23-A(b). It is true, in the order a reference is also made to the provisions of Section 23-D(3) and Order 8, Rule 9, CPC but nothing is said how those provisions are applicable to the instant case. It is only the ingenuity of Shri Jain which has put up a minor road-block, which I propose to deal now.