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Gopal Sahai Vs. Thakur Sahab Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 738 of 1984
Judge
Reported in1986MPLJ163
ActsMadhya Pradesh Accommodation Control Act, 1961- Sections 23-C(1)
AppellantGopal Sahai
RespondentThakur Sahab Singh
Appellant AdvocateR.P. Johari, Adv.
Respondent AdvocateVijay Yogi, Adv.
DispositionRevision allowed
Excerpt:
- - i took the view that the provision must be so construed that the object of the enactment is not defeated;.....fifteen days, namely, on 15-3-1984, he did file his application, expressing his intention to defend landlord's application for eviction. the only lacuna by which he was hit by the trial court was absence of the affidavit. the rent controlling authority did not allow any opportunity to the tenant to fill up the lacuna and dismissed the application summarily on the ground that the application was not accompanied by an affidavit.3. shri vijay yogi, learned counsel, appearing for the non-petitioner-landlord, vocally submits that the provisions of sub-section (1) of section 23-c are mandatory. indeed, they are so, but to what extent. the intention of the legislature, making provision for tenant to be given leave to defend proceedings, must be understood and appreciated and accorded.....
Judgment:
ORDER

T.N. Singh, J.

1. Tenant's application for leave to defend was refused under the Madhya Pradesh Accommodation Control Act, 1961. He is, therefore, before me in this revision.

2. On 7-3-1984, the tenant-petitioner was served with summons in terms of Sub-section (1) of Section 23-C of the aforesaid Act and within fifteen days, namely, on 15-3-1984, he did file his application, expressing his intention to defend landlord's application for eviction. The only lacuna by which he was hit by the trial Court was absence of the affidavit. The Rent Controlling Authority did not allow any opportunity to the tenant to fill up the lacuna and dismissed the application summarily on the ground that the application was not accompanied by an affidavit.

3. Shri Vijay Yogi, learned Counsel, appearing for the non-petitioner-landlord, vocally submits that the provisions of Sub-section (1) of Section 23-C are mandatory. Indeed, they are so, but to what extent. The intention of the Legislature, making provision for tenant to be given leave to defend proceedings, must be understood and appreciated and accorded primacy. In Alok Awasthi's case (Civil Revision No. 127/85, decided on 5-9-1985 : (reported in 1986 MPRCJ 19), I had an occasion to interpret Sub-section (2), Section 23-C, under which, evidently, the impugned order was passed. I took the view that the provision must be so construed that the object of the enactment is not defeated; the Act evenly balances rights of tenants and landlords and protects the honest and law-abiding in both classes. I also took the view that the application to be considered valid in terms of Sub-section (1), Section 23-C, must be such an applicationas would manifest the position that the tenant had a bona fide defence and he should, therefore, be given an opportunity to defend the landlord's application and resist his eviction.

4. The question, therefore, is, was reasonable opportunity given to the tenant. The formal requirement of the application being supported by an affidavit was not fulfilled, but that defect was curable and was not fatal to the application. The application could have been dismissed only after the authority had recorded a clear and cogent finding that the application did not disclose a bona fide defence. In the instant case, that is not the position. Because there was no affidavit, the Court took the view that the tenant cannot enter the portal of the Court and seek justice. The requirement of affidavit is also mandatory, but it was not necessary that the affidavit must have also been filed within fifteen days; it could have been filed later and cause could have been shown for belated filing of the affidavit. The only requirements of Sub-section (1) of Section 23-C is that the application must be 'supported' by an affidavit. The requirement is not that it must be accompanied by an affidavit which the Authority could insist before considering the application. True, an affidavit was a prerequisite as is indicated by the use of the word 'supported'. Section 23-C does not imply, however, penalty for an affidavit not accompanying tenant's application and its rejection summarily, without being considered on merits. It was the duty of the Authority to allow the tenant an opportunity to make amends and remove formal defect in the application by filing of the affidavit, which would have merely lent weight or 'support' to the bona fide of tenant's plea set out in the application.

5. In the result, this application succeeds and is allowed, the tenant shall be given an opportunity to file the requirement affidavit, if not filed later, and the application shall be considered and disposed of on merits. No costs.


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