BRIJ MOHAN SHRIVASTAVA Vs. RAMESH

JUDGEMENT

(1.) SMT . Sakhyabai Pawar who has since died and is represented by her legal heirs initiated proceedings against the tenant in various forums. She tried her luck under Article 226 of the Constitution of India. Her claim was rejected on the ground that remedies available to her are with the Civil Court. She approached the Rent Controlling Authority (hereinafter referred to as the RCA). During interim stage, the matter came to this Court. This bears Civil Revision No. 231/92. The plea of res judicata sought to be taken by the petitioner/tenant. This was negatived. She was able to obtain an order of eviction on 27.11.1995 but before she could reap the fruits of that order, she left this world on 31.1.1996. As death took place after the order of eviction the petitioner has impleaded two persons as respondents to this petition. This has been done by giving an explanation as contained in Para 6 of the petition. This para reads as under :

(2.) THE tenant has taken a plea that the petition was filed by Smt. Sakhyabai for her own bona fide requirement. It was not her case that she required this for the benefit of the present respondents. As such it is suggested that this order of eviction should be set aside. It be seen that in this petition two persons Ramesh and Arun said to be sons of Baburao Kante have been arrayed as respondents. However, without going into controversy as to who should represent the estate of Smt. Sakhyabai, suffice it to say that Smt. Sakhyabai never initiated proceedings for the benefit of the respondents. Smt. Sakhyabai having sought eviction on the ground that the premises are required by her and she having died an argument has become rightly available to the present petitioner that the need of the person who was since died become relevant. He is taking shelter behind a decision of the Supreme Court of India. This decision is reported as Smt. Laxmi alias Anandi v. C. Setharama Nagarkar, AIR 1996 SC 268. In this case, the mother died during the pendency of the proceedings. It was held that if premises are required by her sons, then this would require re-investigation. As a matter of fact this is the consistent view of the Supreme Court. For this reference be made to the decision of the Supreme Court reported as Hasmat Rai v. Raghunath Prasad, AIR 1981 SC 1711.

(3.) THE question would arise as to whether the provisions of Chapter IIIA would be available or not. This chapter would obviously be not available because the persons who have been arrayed as respondents in this petition do not fall within the definition of landlord as occurring in Section 23-J. As such, the matter would have to be sent to the Civil Court. The order passed by Rent Controlling Authority has necessarily to be set aside. The parties to appear before the District Judge, Gwalior who would indicate as to which Court this matter is to be assigned. This would be tried as a suit under Section 12 of the M.P. Accommodation Control Act, 1961. The parties would be at liberty to file amended pleadings. If any party seeks intervention, then their rights would of course be decided by the trial Court. The question as to whether the intervention can be sought on the basis of the will and as to whether the respondents are entitled to continue would also be gone by the trial Court. This petition is disposed of in the manner indicated above. The trial Court to take steps with a view to finalise the litigation as early as possible, preferably within one year. The parties would co-operate with the trial Court so that the wish expressed by this Court does not remain a mere wish. Parties to appear before the District Judge, Gwalior on 23.9.1996. Order accordingly.