M/S Fashion World vs Banshidhar Multi Builders Pvt. ... on 6 August, 2018
Madhya Pradesh High Court
M/S Fashion World vs Banshidhar Multi Builders Pvt. … on 6 August, 2018
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Misc. Petition No.1509/2018
(M/s. Fashion World Vs. Banshidhar Multi Builders Pvt. Ltd.)
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Indore, dated 06/08/2018
Shri A. K. Sethi, learned Senior Counsel with Shri Prateek
Maheshwari, learned counsel for the petitioner.
Shri Veer Kumar Jain, learned Senior Counsel with Shri
Vaibhav Jain, learned counsel for the respondent.
The petitioner before this Court has filed present petition against order dated 10/03/2018 passed in Civil Suit No.25-A/2012 by which the application preferred by the plaintiff under Section 13(6) of the M. P. Accommodation Control Act, 1961 (for short “the Act of 1961”) for striking off the defence of the defendant –
petitioner, has been allowed.
02- The facts of the case reveal that the respondent plaintiff has filed a civil suit seeking eviction of the defendant – petitioner in respect of a property situated at Bansi Plaza, 581/3, M. G. Road, Indore on the ground of bona-fide need for business and extension of business taking shelter of Section 12(1)(f) of the Act of 1961. The petitioner’s contention is that during pendency of the suit an application was preferred by the plaintiff under Section 13(6) of the Act of 1961 stating that the suit has been filed for eviction and rent recovery and the defendant is irregular in making payment of rent.
He has not paid in time the maintenance charges and Service Tax.
The petitioner has further stated that earlier application was allowed HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Misc. Petition No.1509/2018 (M/s. Fashion World Vs. Banshidhar Multi Builders Pvt. Ltd.) by order dated 10/03/2014 and again a subsequent application was filed stating that GST dues have not been paid.
03- A reply was filed in the matter and the trial Court has allowed the application preferred under Order 13(6) of the Act of 1961 vide order dated 10/03/2018. In the writ petition it has been stated that since the order passed by the learned trial Court is lacking in the due appreciation of the facts and circumstances, settled principles of law, as also due consideration of the points involved in the case as well as documents on record including rent agreement directing direct striking off defence without any opportunity of petitioner – defendant by directing payment, therefore, being dissatisfied with the impugned order passed the by the trial Court, present miscellaneous petition has been filed.
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M/S Fashion World vs Banshidhar Multi Builders Pvt. … on 6 August, 2018
- – Learned senior counsel arguing the matter has argued before this Court that the amount of rent does not include GST and the trial Court has erred in law in allowing the application. It has also been argued that as per rent note executed between the parties, GST is certainly not a part of the rent and the trial Court has certainly erred in law.
- – Heavy reliance has been placed upon a judgment delivered in the case of Atma Ram Properties Pvt. Ltd. Vs. The Oriental HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Misc. Petition No.1509/2018 (M/s. Fashion World Vs. Banshidhar Multi Builders Pvt. Ltd.) Insurance Co. Ltd. reported in AIR 2017 SC 5714 and a prayer has been made for setting aside the impugned order. It has also been argued that the trial Court has committed a grave error of law by accepting the contentions made by the plaintiff and only GST was not deposited, the impugned order deserves to be quashed.
- – On the other hand, a detailed and exhaustive reply has been filed in the matter and the stand of the respondent – plaintiff is that the suit for eviction has been filed on 06/01/2012 and the defendant who is petitioner before this Court has made all possible endeavor for delaying the finalization of the suit. It has been further stated that earlier on 22/10/2013 an application was preferred under Section 13(6) of the Act stating that the defendant is not regularly depositing the rent along with Service Tax which is part of the rent and an objection was raised by the defendant that Service Tax is not part of the rent and the trial Court overruling the objection has held that Service Tax is certainly part of the rent. However, in stead of striking off the defence, opportunity was granted to the defendant to deposit the amount of Service Tax.
- – An order was passed on 10/03/2014 by the trial Court holding the aforesaid. It has been stated that the petitioner has deliberately suppressed the order dated 10/03/2014 passed in the matter. The respondent has further stated that in spite of the fact that the issue HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Misc. Petition No.1509/2018 (M/s. Fashion World Vs. Banshidhar Multi Builders Pvt. Ltd.) in respect of payment of Service Tax / GST was already decided by the trial Court on 10/03/2014, the defendant again stopped the payment of GST in spite of their being a categoric order dated 10/03/2014. Even though the defendant is not depositing the rent along with GST, the plaintiff who is under a responsibility to pay GST to the Government is regularly paying GST from his own pocket and he has enclosed receipts which are on record as Annex.-R/2.
- – It has also been argued that even though the suit is pending since 2012, not a single witness could have been examined as the petitioner who is defendant was delaying the matter on some pretext or the other. A writ petition i.e. Writ Petition No.12749/2013 was also preferred before this Court and it was disposed of with a direction to the trial Court to decide the suit itself within eight months. The respondent has further stated that in spite of the aforesaid order the petitioner who is defendant has delayed the finalization of the civil suit. A prayer has been made for dismissal of the writ petition.
- – Heard learned counsel for the parties at length and perused the record. The matter is being disposed of with the consent of the parties at motion hearing stage itself.
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M/S Fashion World vs Banshidhar Multi Builders Pvt. … on 6 August, 2018
10- In the present case, a similar controversy in respect of HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Misc. Petition No.1509/2018 (M/s. Fashion World Vs. Banshidhar Multi Builders Pvt. Ltd.) payment of Service Tax was looked into by the trial Court and the trial Court on an application preferred by the plaintiff under Section 13(6) of the M. P. Accommodation Control Act, 1961 has passed an order on 10/03/2014 holding that the defendant is required to pay Service Tax while paying the rent. The order dated 10/03/2014 was never challenged and has not been filed by the petitioner, it has been filed by the respondent. Thus, it is evident that the petitioner is guilty of suppressing vital facts while filing the writ petition. In light of the order dated 10/03/2014, it is crystal clear that the petitioner who is a defendant was required to deposit Service Tax (which is now known as and is included in GST). The chronology of events makes it very clear that the suit is being delayed on some pretext or the other and the chronology reads as under:-
Date Proceeding 06/01/2012 The suit was filed.
14/08/2012 Written statement was filed.
26/09/2012 Issues were framed.
18/01/2013 Affidavit of examination-in-chief was filed and the Petitioner sought time for cross-examination. 25/03/2013 The petitioner sought time for cross-examination. 17/04/2013 An application under Order 6 Rule 17 was filed by the Petitioner.
22/07/2013 Again an application under Order 6 Rule 17 was filed the Petitioner.
13/11/2013 Application under Section 13(6) of “the Act” was filed.
10/03/2014 The application under Section 13(6) of “the Act”
and other applications were decided. The Petitioner was directed to deposit the amount of HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Misc. Petition No.1509/2018 (M/s. Fashion World Vs. Banshidhar Multi Builders Pvt. Ltd.) maintenance and tax and to keep on depositing the same.
22/08/2014 The Petitioner having deposited partial amount of service tax filed an application under Section 151 CPC praying thereby that the Respondent be not allowed to withdraw the said amount. The learned trial Court considering its order dated 10/03/2014 rejected the said application.
14/10/2014 When the case was fixed for evidence the Petitioner filed an application under Order 11 Rule 12-14 CPC.
26/02/2015 When the case was fixed for evidence, the Petitioner again filed an application under Order 6 Rule 17 CPC.
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M/S Fashion World vs Banshidhar Multi Builders Pvt. … on 6 August, 2018
17/06/2015 When the case was fixed for evidence the Petitioner again filed an application under Order 6 Rule 17 CPC.
15/07/2015 When the case was fixed for evidence, the Petitioner filed an application for adjournment. 05/08/2015 When the case was fixed for evidence till 3 O’ clock, the Petitioner did not appear and the case had to be adjourned.
09/09/2015 When the case was fixed for evidence, the Petitioner again sought time for cross-examination with a direction to complete the cross-examination on the next date of hearing.
05/10/2015 When the case was fixed for evidence, the Petitioner filed an application under Section/Rule 110 Civil Court Rules.
30/11/2015 When the case was fixed for evidence, the Petitioner filed an application under Order 14 Rule 5 CPC.
09/02/2016 When the case was fixed for evidence, the Petitioner filed an application for adjournment the same was allowed with a direction to remain present at 11 a.m. on the next date of hearing for cross-examination.
08/03/2016 The case was again adjourned for arguments on the application.
26/07/2017 When the case was fixed for evidence, the same was again adjourned for arguments on the application.
06/10/2017 The Respondent filed an application under Section 13(6) of “the Act”.
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Misc. Petition No.1509/2018 (M/s. Fashion World Vs. Banshidhar Multi Builders Pvt. Ltd.) 10/03/2018 An application under Section 13(6) of “the Act”
was allowed and the case was fixed for evidence on 22/06/2018.
11- Not only this, this Court in Writ Petition No.12749/2013 vide order dated 22/10/2013 has directed the trial Court to decide the civil suit itself within eight months and now we are in the year 2019.
Order dated 22/10/2013 reads as under:-
“Petitioner by Shri Veer Kumar Jain, advocate. Being aggrieved by the order dated
23/09/2013 passed by III Additional District Judge, Indore, in Civil Suit
No.9-A/2013, whereby application filed by the respondent under Order VI Rule 17
was allowed, present petition has been filed.
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M/S Fashion World vs Banshidhar Multi Builders Pvt. … on 6 August, 2018
Learned counsel for the petitioner submits that the petitioner is a company, filed a
suit for eviction under Section 12(1(a)(e) and (f) of the M. P. Accommodation Control
Act, which was contested by the respondent. When the case was fixed for evidence
after obtaining seven dates for cross examination, at the stage of evidence, amendment application was filed, which has no relevance but was allowed, against which present petition has been filed.
After going through the record and the fact that the respondent is not before this Court, the petition itself is disposed of with a short direction that the learned Court below shall fix the case for evidence and shall dispose of the suit within a period of eight months and shall not give any unwanted adjournment as seven dates has already been given, as alleged by the counsel for the petitioner.
With the aforesaid, petition stands disposed of.”
12- In light of the aforesaid, as undisputedly, the defendant on some pretext or the other has delayed the finalization of the case and therefore, the trial Court is directed to decide the civil suit within two months by holding hearing of the matter every week. So far as the judgment relief by the learned in the case of Atma Ram Properties Pvt. Ltd. (supra), it does not relate to any issue in HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Misc. Petition No.1509/2018 (M/s. Fashion World Vs. Banshidhar Multi Builders Pvt. Ltd.) respect of striking off defence on the ground of non-payment of rent.
It is certainly distinguishable on facts. The issue in the aforesaid case reads as under:-
“Whether property tax recoverable from the tenant Under Section 67(3) of the New Delhi Municipal Council Act, 1994 (for short ‘NDMC Act’) as arrears of rent by the landlord/owner can be considered to be forming part of the rent for the purpose of seeking eviction or ejectment of such tenant who defaults in payment of such recoverable tax as rent and when the rent including recoverable tax in respect of the tenanted premises exceeds Rs.3500/- per month, thereby losing protection of the Delhi Rent Control Act, 1958 (for short ‘Rent Act’).”
- – Whereas in the present case, the issue is altogether different and therefore, the judgment relied upon by the learned counsel is distinguishable on facts. This Court is of the opinion that the order passed by the trial Court does not suffer from any jurisdiction error nor it is a perverse order.
- – The apex court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil reported in 2010 (8) SCC 329 in paragraph 49 held as under:-
“49. On an analysis of the aforesaid decisions of this Court, the following principles
on the exercise of High Court’s jurisdiction under Article 227 of the Constitution may
be formulated:
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M/S Fashion World vs Banshidhar Multi Builders Pvt. … on 6 August, 2018
(a) A petition under Article 226 of the Constitution is different from a petition under
Article 227. The mode of exercise of power by High Court under these two Articles is
also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The
history of the conferment of writ jurisdiction on High Courts is substantially different
from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
- High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Misc. Petition No.1509/2018 (M/s. Fashion World Vs. Banshidhar Multi Builders Pvt. Ltd.) interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
- The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
- According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, ‘within the bounds of their authority’.
- In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
- Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
- In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
- High Court’s power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.
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M/S Fashion World vs Banshidhar Multi Builders Pvt. … on 6 August, 2018
- It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court’s power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court’s jurisdiction of superintendence under Article 227.
- The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Misc. Petition No.1509/2018 (M/s. Fashion World Vs. Banshidhar Multi Builders Pvt. Ltd.)
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exercised suo motu.
- On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
- The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.
- This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
- An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.”
15- In light of the aforesaid judgment as no patent illegality has been committed by the trial court and the order passed by the trial court does not suffer from any jurisdictional error, this court does not find any reason to interfere with the order dated 10/03/2018. The trial Court is directed to decide the suit within two months, by holding hearing of the matter every week.
No order as to costs.
Certified copy as per rules.
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M/S Fashion World vs Banshidhar Multi Builders Pvt. … on 6 August, 2018
(S. C. SHARMA) JUDGE Tej Digitally signed by Tej Prakash Vyas Date: 2018.08.07 16:08:52 +05’30’
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