Landlord-tenant disputes are very common in India. Most of the States have created separate enactment to regulate landlord-tenant relations and methods of termination. In Madhya Pradesh, the M.P. Accommodation Control Act, 1961 (herein after called ‘Act’) is applicable in most of the Notified areas. In un-notified areas, the provisions of Transfer of Property Act, 1882 are applicable.

Normally, tenants after receiving court’s notice in eviction proceedings, wait till the date mentioned in the notice. In many cases, the tenants appear before courts on fixed date shown in the notice and find that their statutory right to defend is struck off.  This is because, there is a mandatory provision in the Act that every tenant, against whom, eviction proceedings has been initiated, is liable to deposit arrears of rent within one month from the date of receiving notice of the court. If someone violates this condition mentioned under section 13(1) of the Act, his right to defend shall be struck off. The delay caused in deposing shall not be condoned anyway. So, the Act imposes strict liability on every tenant involved in litigation, to deposit arrears of rent within time stipulated in the Act.

Present scenario of Indian judiciary

Indian Judiciary is well-equipped with modern information technology. Since the last ten years every subordinate court has had facilities of online records. Courtrooms have been provided display boards for showing witness statements as being recorded by the court. If any court wants to call any advocate, there is a facility to show the name of the advocate with case details on the display board. Anybody can see any case status on an E-Court app or Website (App for ECourt Services). Now, we can search any case pending anywhere in any Indian Court. Likewise, the Supreme Court and High Courts of all States have a powerful software, which provides online display boards. Now, we can see the live status of cases of hearing in Supreme Court and High Courts. Every Order, Judgement, Petition and Return is being scanned just after inclusion in Court’s records. We can easily see online the Court’s orders and Judgments soon after its delivery. If an advocate has provided his or her cellphone number to the Registry or mentioned in Vakalatnama, the Office of the Court intimate him or her the next date of hearing through SMS.

Long lasting effects of covid-19 

It’s well known the pandemic of Covid-19 has played a major role in the routine office working. Everyone wants to keep himself safe and uninfected from Coronavirus. Social distancing has become the need of time. Using a face mask in public places, every time is mandatory. In the congested courtrooms, it’s very difficult to maintain these two basic precautions for everybody. Even if we install thermal scanners in every entrance point of the court, it’s extremely difficult to stop the outbreak of Coronavirus. This is especially when the infection of Coronavirus is asymptomatic. 

Awareness about information technology

Nowadays, most of the people are well versed with the use of information technology based instruments like smartphones, tablets and computers. Most of us are now online. Especially, Whatsapp, Skype, Facebook as well as App for ECourts Services are very common and popular among advocates. Now, knowledge of English is not required to login these digital applications. Posts can be uploaded in vernacular or local languages. In the light of the present scenario, all Judicial Works from filling or institution of the case to its disposal, everything could be done and performed online. Due to the Covid situation, a few courts including the Supreme Court have also started using video conferencing medium to hear cases and arguments, which is a convenient option not only for courts and advocates, but also for all stakeholders.

Suggestion for more effective judicial system

This is the right time when we must introduce a court culture to maintain social distancing. For this purpose we must introduce a new Judicial System by way of suitable amendments in Civil, Criminal procedure and Rules of Evidence. In view of this factual situation we must think about strengthening the E-filing system that has already become part of the Judicial Process. Now it should be given preference. At present, E-filing facility is not available after filing a case in subordinate Courts. We are required to file every Interim Application (in short ‘IA’) before the Presiding Judge. This system needs suitable amendments and there should be an option for filling any IA online before the Court of Law. In the Criminal side, E-filing facility is not available in Subordinate Courts, and that needs to be started. Evidence by video conferencing is not accepted in all cases. It is permissible only if the party accused is not able to attend courts due to ill health or if the party resides abroad. This procedure should be adopted in each and every case, and should not be reason-based. For the adoption of this procedure suitable amendments should be made as the Rule of Evidence.

          The Madhya Pradesh Government by its Notification No. F-287-2020-Losepra- PSG 02 Dated 4 May 2020, has notified the services related to the Labor Department of MP, for the purposes of the M.P. Lok Sewa Guarantee Adhiniyam, 2010. In this Notification the limit limitations for disposal of applications, first and second appeal has been prescribed. By this Notification the Government also declared Designated Officers, First Appellate Authority and Second Appellate Authority. Notification Published in MP Rajapatra, Asadharan No. 162 Dated 4 May 2020.

Maximum civil litigation in India courts is generated because of disputes relating to immovable property. Some cases are based on breach of contract of transfer of property. The provisions relating to transfer of property are mainly governed by the Transfer of Property Act, 1882 and the Registration Act, 1908. Though, we can not overlook the constitutional provision relating to property. Under Article 300A of the Constitution of India, no person shall be deprived of his property save by the authority of law. The Supreme Court of India had observed that the right to property is a human right as well as a constitutional right. The case of Indian Handicrafts Emporium v. Union of India, reported in AIR 2003 SC 3240 should be referred to in this regard.

Statutory provisions related to transfer

It is notable that for the recognition of right to property, certain important provisions in statutes are made by the legislature. These are as follows:

The Transfer of Property Act, 1882

Section 54 of this Act deals with the ‘Sale’ and prescribes “sale how made.” According to this provision, any such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immovable property of value less than one hundred rupees, such transfer may be made either by a registered instrument or by the delivery of the property.

Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

The Registration Act, 1908

Section 17 of this Act directs that the registration of certain documents relating to immovable property is compulsory in certain cases. The said documents are:

1. An instrument of gift deed of immovable property;
2. Any other non-testamentary instrument which purports or operates to create, declare, assign, limit or extinguish any right, title or interest of the immovable property of the value of one hundred rupees and upwards;
3. Lease of the immovable property for any term exceeding one year;
4. Non-testamentary instrument transferring or assigning any decree or order of a Court or any award which purports or operates to create, declare, assign, limit or extinguish any right, title or interest of the immovable property of the value of one hundred rupees and upwards;
5. Any document which purports or operates to affect any contract for sale of any immovable property. This is a Local amendment of Madhya Pradesh with effect from 14.01.2010.
6. Power of attorney relating to sale of immovable property in any way. This is a Local amendment of Madhya Pradesh with effect from 14.01.2010.

Law commission’s recommendations

The Law Commission of India, in its report No. 221 of 2009 on “Need for Speedy Justice – Some Suggestions” had made recommendation with respect to sale of immovable property in the following words:

“Para 2.16 When a person purchases immovable property, the sale deed is required to be registered. Normally, the vendor and the vendee show case transaction for sale consideration and an endorsement is also made by the Registrar/ Sub-Registrar to the effect. But when a person has to play a foul game, the major portion of the sale considerations shown to have been paid outside and not before the Registrar/Sub-Registrar and it gives rise to unnecessary litigation, both criminal and civil. With the vast network of Banks and the growing awareness amongst the common people, a time has come to make it mandatory that the consideration for the every sale shall be paid through Bank Draft. This will check frivolous transactions as well unnecessary litigation.”

It is highly surprising that the Central Government i.e. Ministry of Law and Justice, Government of India did not appreciate the report. Resultantly, an important revision in the Transfer of Property Act, 1882 is still pending and has not received any attention of the Parliament.

Amendment needs to prevent corruption

It is pertinent to note that an amendment based on the aforesaid recommendation by the Law Commission could carry out an important role to fight against corruption and prevent offences like “Money Laundering and Income Tax Evasion”.  It is well known that the investment in immovable property is very common. It is equally known that cash payment of consideration is a common practice for tax evasion. The report ‘Black Money in the Real Estate Sector: A Study’ by National Institute of Public Finance and Policy made some stark revelations on tax evasion and the prevalent corruption in the real estate sector in India. To an extent, section 40A (3) of Income Tax Act, 1961, directs the disallowance of business expenditure incurred during the course of business or profession in respect of which payment in a sum exceeding rupees 20,000/- is made otherwise than by an account payee cheque drawn on a bank or account payee draft. However, this statutory provision has a limited impact. If the recommendation made by the Law Commission of India is effected, the transactions relating to immovable property shall be transparent and to a extremely great extent, corruption free.

The Code of Civil Procedure, 1908, (the “Code”), plays a very important role in Civil Courts and Revenue Courts in India. Many quasi-judicial authorities exercise the powers conferred under the Code. In this Article, we will concentrate our discussion on “Civil Procedure for the issue of Territorial Jurisdiction under the Code.”

Order XIV of the Code deals with issues in disputes. This Order prescribes the procedure for framing and amendments in respect of issues in disputes. We are aware that framing of issues is a very important stage in trial. This Order consists of Rules. Rule 2 provides the procedure for framing preliminary issues and its disposal in the event of objection regarding Jurisdiction and/ or a legal embargo.

At this juncture, it is necessary to refer to Rule 2[1] of the Order XIV of the Code. From the perusal of this statutory provision, it is clear that in the Code, it is the discretionary powers of the Court to decide preliminary issue regarding jurisdiction or if there is any restriction on the suit created by any law. Though, there are several judgements that have held that the issue regarding Territorial Jurisdiction is a mixed question of law and fact and it could not be decided as preliminary issue.  We must refer to the latest judgment of Satti Pardeshi Samadhi & Pillayar Temple v. M. Shakuntala[2], in which it has been held that –

“On a plain consideration of the language employed in sub-section (2) of Order 14 CPC, it can be stated with certitude that when an issue requires an inquiry into facts, it can not be tried as a preliminary issue.”  

The State Assembly of Maharashtra made an important local amendment in the Code and inserted Section 9-A[3] after Section 9. From the perusal of this statutory provision, it is clear that it is mandatory in Maharashtra that if any party raises objection regarding jurisdiction, the Court shall proceed to determine that objection first. This statutory provision is meant to curb the issue of frivolous litigation. If a court has no jurisdiction to hear a suit, then why such suit should be continued in that court? Why the important time of courts and nation should be wasted for the misuse of judicial process?

In this context, in the interest of the nation and the society, the provision inserted in the Code by the Legislature Assembly of Maharashtra must be incorporated by the Indian Parliament also. If the Parliament amends the central legislation, the bona fide litigants of the country shall be benefitted by this proposed amendment. The same will reduce unnecessary burden mounted on the civil courts and revenue courts.

[1] Rule 2. Court to pronounce judgement on all issues.—(1) Notwithstanding that a case many be disposed of on a preliminary issue, the Court shall subject to the provisions of sub-rule (2), pronounce judgement on all issues.

(2) Where issues both of the law and fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to—

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on the issue.

[2] (2015) 5 SCC 674, Para 14

[3] Section 9A inserted by Maharastra Amendments.—Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue –

(1) Notwithstanding anything contend in this Code or any other law for the time being in force, if ,at the hearing of any application for granting or setting aside an order or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such a suit is taken by any parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.

(2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it the preliminary issue as to the jurisdiction.