RAVINDRAKUMAR BHANWARLALJI JAIN Vs. PRAKASHCHAND CHAMPALAL JAIN

JUDGEMENT

(1.) THIS is a petition under Article 227 of the Constitution of india by the landlord-petitioner for quashing of the order passed in Civil Revision no. 87/86 on 12-1-1987 by the Additional District Judge, Neemuch to the Court of the District Judge, Mandsaur.

(2.) BRIEF facts, leading to this petition are: that the petitioner filed an application under section 23-A (a) of the M. P. Accommodation Control Act, 1961 (for short "the Act") for ejectment of the respondent No. 3 the tenant from the residential suit premises on the ground of bona fide requirement. As a result of the amendment in S. 23-J of the Act by M. P. Accommodation Control (Amendment)Act No. 7 of 1985 as the petitioner did not fall within the category of landlord defined in S. 23-J of the Act as amended, the application of the petitioner by order dated 31-1-1985 of the Rent Controlling Authority was transferred to Civil Court of competent jurisdiction in view of S. 9 of the M. P. Act No. 7 of 1985. On 19-2-1985 the said application, which by fiction of law was treated as a plaint for ejectment in a civil Court was received on 19-2-1985. On this date, the respondent-tenant was absent. Hence, the Civil Judge Class-II, issued a summons to the respondent-tenant for appearance in the Court on 30-7-1985. On behalf of the tenant Shri Kamlakant pandey, Advocate, appeared, who prayed for time for filing written statement on 17-9-1985, 29-10-1985, 3-12-1985, 23-2-1986 and 13-11-1985. On 6-3-1986 when the case was fixed for filing of the written statement, neither the tenant nor his counsel appeared, hence, the Court ordered to proceed ex parte against the tenant-defendant. On 15-4-1986 ex parte evidence was recorded and thereafter, after the payment of defict court fees, an ex parte judgment and decree was passed on 25-6-1986. The defendant-tenant neither applied for setting aside of the ex parte decree nor filed an appeal against the said ex parte decree. On 28-8-1986, the petitioner-landlord filed an application for execution before the executing Court for obtaining possession. A warrant of attachment of petitioners and for delivery of possession was issued on 2-9-1986. On 17-9-1986 the judgment-debtor the respondent No. 3 through his counsel appeared before the Executing Court and submitted the objections in respect of the executability of the decree, in as much as that as the court-fees was not paid on the plaint by the plaintiff-decree-holder after transfer of the application, nor the application was amended so as to put the proper valuation, cause of action and relief, the Civil Court could not have entertained the suit and the decree so passed on such a plaint is a nullity and cannot be executed. The Executing court dismissed the objections vide order dated 16-10-1986 annexed as Annexure-C. Against this, a revision was preferred by the tenant. The revisional Court placing reliance on an unreported judgment of this court in Second Appeal No. 28/86 M/s decom Marketing Ltd. vs. Kallubhai, decided on 1-8-1986, held that on the application received after the transfer from the Rent Controller, the requisite Court fees was not affixed, as such it could not have been treated as a plaint. Therefore, the decree so passed on such a plaint after payment of court-fees by the petitioner-landlord is a nullity and cannot be executed.

(3.) SHRI G. M. Chaphekar, learned counsel for the petitioner contended that according to the language used in S. 9 of the M. P. Act No. 7 of 1985, such an application transferred from the Rent Controlling Authority to a Civil Court by deeming provisions shall be treated as plaint and as such an application could not have been dismissed for want of deficit court fees. Reliance was placed on a Division bench decision of this Court in Pannalal Shrivastava and Ors. vs. Dinesh Chand and Ors. (1986 MPLJ 680 ). Learned counsel also alternatively contended that when the deficit court fees was paid, the plaint will be deemed as a valid plaint from the date of its institution. Reliance was placed on the section 4 of the Court Fees Act, 1970 and on the S. 149 of the Code of Civil Procedure and on the decision of the apex Court in Mannan Lal vs. Mst. Chhotka Bibi and Ors. (AIR 1971 SC 1374 ). Learned counsel further contended that the Executing Court was bound to execute the decree as it stands unless there is inherent lack of jurisdiction. Reliance was placed on the decision in Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman and others (AIR 1970 SC 1475) and a Full Bench report of this court in Moolchand and others vs. Mangilal (1965 MPLJ 89 ). Learned counsel also placed reliance on S. 99 of the Code of Civil Procedure, wherein a decree cannot be reversed/modified for error or irregularity not affecting the merits or jurisdiction. Learned counsel also further contended that even if the decree was without jurisdiction, the tenant was bound to file an appeal before the appellate court to get it set aside or could have applied for setting aside the ex parte decree. This having not been done, the tenant was not entitled to raise such objections before the Executing Court. Therefore, the revisional court clearly exceeded its limit of authority in holding that the decree was without jurisdiction.