KAILASH NARAYAN DEEWAN v. BABOOLAL SURESH CHAND — 1989 DIGILAW 307 (MP)

S. K. DUBEY, J. ( 1 ) THIS revision under Section 23-E of the M. P. Accommodation Control Act, 1961, as amended (for short, the 'act') has been preferred by the landlord-petitioner against an order dated 2-4-1986, passed by the Rent Controlling Authority, Gwalior, (for short 'rent Controller') in Case No. 56/ 8485 / 90-7. ( 2 ) BRIEF facts leading to this revision are the petitioner is a retired Government servant, who retired on 31-5-1980 from the post of U. D. C. in the office of Joint Director, Veterinary Departent, Gwalior. The petitioner filed an application on 21-11-1984 under Section 23-A (b) of the Act before the Rent Controller invoking special provision for eviction of the respondent from the suitshop, averring that the respondent is his tenant on a monthly rent of Rs. 90/- in the suit-shop; the suit-shop was let out by the petitioner to the respondent as owner initially in the year 1971; the petitioner filed a regular Civil Suit No. 13-A/ 1976 for eviction of the respondent on the ground under Section 12 (1) (a) of the Act in the Court of Third Civil Judge, Class II, Gwalior, wherein a compromise was entered into between the petitioner and the respondent. In that compromise dated 10-8-1978 the respondent accepted the petitioner as landlord owner and agreed to enhance the rent of the suit-shop from Rs. 50/- to Rs. 75/- per month on the condition that in the suit shop necessary repairs costing about Rs. 2,000/- would be carried out by the petitioner. The petitioner claimed eviction on the ground of "bona fide" requirement for starting his own business of general merchant and for that, petitioner alleged, he had got sufficient funds and there is no other reasonably suitable non-residential accommodation of his own in his occupation in the city of Gwalior. The petitioner invoked the jurisdiction of the Rent Controller by virtue of the amendment in the M. P. Accommodation Control (Amendment) Act, 1983 (Act No. 27 of 1983), whereby special provisions in Chapter III-A in relation to eviction of tenants on ground of (bona fide) requirement were inserted, which came into force from 16-8-83. The petitioner invoked the jurisdiction of the Rent Controller by virtue of the amendment in the M. P. Accommodation Control (Amendment) Act, 1983 (Act No. 27 of 1983), whereby special provisions in Chapter III-A in relation to eviction of tenants on ground of (bona fide) requirement were inserted, which came into force from 16-8-83. During the pendency of this application before the Rent Controller, the principal Act was further amended by M. P. Accommodation Control (Amendment) Act, 1985 (Act No. 7 of 1985), which came into force from 26-4-1985, whereby besides other provisions, Section 23-J was also inserted, which defines 'landlord' for the purposes of Chapter III-A of the Act, wherein five categories of landlords have been specified, one of them is a retired servant of any Government, who can invoke the special provision for eviction of tenant on ground of "bona fide" requirement under Chapter IIIA. It is not disputed that the petitioner being a retired Government servant fell within the definition of "landlord" under Section 23-J (i) of the Act. When the Act was amended by Act No. 7 of 1985 the Rent Controller transferred the application to the Civil Court for deciding the same. The District Judge, Gwalior, vide his Endt. No. 1842 dated 6-7-1985 returned the application that as the application has been filed by a retired Government servant, the Rent Controller does not lose his jurisdiction and the application for eviction will have to be decided by the Rent Controller. The parties also did not dispute either before the Rent Controller or before this Court that the petitioner being a retired Government servant, the Rent Controller has not lost the jurisdiction to try the application despite subsequent amendment in the Act by Act No. 7 of 1985, which restricted the benefit of Section 23-A of the Act to specified landlords. ( 3 ) AFTER return of the application by the District Judge to the Rent Controller, the respondent was granted on 18-10-1985 leave to defend under Section 23-C of the Act the application for eviction under Section 23a (b) of the Act. ( 3 ) AFTER return of the application by the District Judge to the Rent Controller, the respondent was granted on 18-10-1985 leave to defend under Section 23-C of the Act the application for eviction under Section 23a (b) of the Act. The respondent, thereafter, filed his written statement and contended therein that the petitioner is not the only owner of the suit-shop but there are other co-owners of the said suit-shop, namely, the two brothers of petitioner, Jugal Kishore and Shanti Kumar, who have not been made parties to the application; hence, the application is not maintainable; the compromise arrived in the ealier suit was under compulsion and duress; hence, any admission, accepting ownership or relationship of landlord and tenant between the petitioner and the respondent is not binding. It was also contended that the petitioner after his retirement has taken an employment in Sahkari Bazar, Lashkar, Gwalior, the application has been filed with an oblique motive to enhance the rent from Rs. 90/- to Rs. 150/- per month; hence, the requirement is not "bona fide" and is not existing, as the petitioner is in employment. It was also contended that other reasonably suitable non-residential accommodation, adjacent to the suit-shop, of other co-landlords is available to the petitioner, therefore also, the petitioner is not entitled for an order of eviction. ( 4 ) THE petitioner to prove the ownership of the suit-shop and privity of contract between him and the respondent as landlord and tenant, led evidence that in December 1971 there was an oral partition between him and his two brothers, and since then the petitioner and his two brothers are occupying their separate portions exclusively as owners. Petitioner also led evidence with respect to the admission of the respondent in the application for compromise, on the basis of which the compromise decree was passed in the earlier suit, which is exhibited as Ext. P-5, he produced receipt 'katta' (Exts. P-1 and P-2) containing counterfoils of rent receipts, right from 16-1-1972 to 1974. The petitioner examined himself and stated on oath about the oral partition, his exclusive possession, as owner, of the suit-shop and the relationship between him and the respondent as landlord and tenant, issuance of receipts of payment of rent by him to the respondent as owner, taking up job as a stop-gap arrangement on daily wages at Rs. The petitioner examined himself and stated on oath about the oral partition, his exclusive possession, as owner, of the suit-shop and the relationship between him and the respondent as landlord and tenant, issuance of receipts of payment of rent by him to the respondent as owner, taking up job as a stop-gap arrangement on daily wages at Rs. 10/- per day and discontinuance of the same from January 1985. About "bona fide" requirement the petitioner stated that he is getting pension at the rate of Rs. 280/- per month, and for starting the business of general merchant, he has got an amount of Rs. 11,000/- in Fixed Deposit which is sufficient for starting the said business for earning his livelihood. The petitioner also examined his brother Dr. Jugal Kishore, who affirmed on oath that there was a partition between the three brothers in December, 1971. He also stated that after the partition, electric and water connections of all the 3 brothers are separate, though in the record of the Municipal Corporation the name of their father is continuing as owner of the suit-shop. He also stated that either he or other heirs of his deceased brother have no concern with the suit property, which is exclusively owned by the petitioner. ( 5 ) TO rebut the case of the petitioner, the respondent examined himself. He has produced a certified copy of the compromise decree (Ext. D-2), passed in Civil Suit No. 13-A/ 1976. A certificate (Ext. D-1), issued from the office of the Municipal Corporation, Gwalior, was also filed by him to prove the fact that the whole house of which the suit-shop is a part, is entered in the name of Suraj Prasad, father of the petitioner, as owner, and in the year 1984-85 name of one Kanhaiyalal Diwan has been entered as owner. The respondent also produced the rent receipts issued by the petitioner, dated 1-5-1981 and 1-5-1982, in his favour, exhibited as Exts. D-3 and D-4. In support of the defence raised by the respondent, he also examined one witness Hukum Chand Agrawal, who stated that the petitioner wants to enhance the rent. The respondent also produced the rent receipts issued by the petitioner, dated 1-5-1981 and 1-5-1982, in his favour, exhibited as Exts. D-3 and D-4. In support of the defence raised by the respondent, he also examined one witness Hukum Chand Agrawal, who stated that the petitioner wants to enhance the rent. ( 6 ) THE Rent Controller dismissed the application for eviction holding that the petitioner has failed to prove partition, that in the record of the Municipal Corporation, his name is not entered separately as owner and that two other shops adjacent to the suit-shop are lying vacant, which, according to the petitioner, belong to his brothers Jugal Kishore and Kaushal Kishore. ( 7 ) SHRI K. S. Tomar, learned counsel for the petitioner contended that the order of the Rent Controller holding that the petitioner is not the sole owner of the suit-shop, the application has not been filed by other co-owners and that two other shops belonging to all the brothers are vacant adjacent to the suit-shop, is illegal, improper and incorrect on the face of the record. In my opinion, the contention of Shri Tomar, in the facts of the case, has got a force. It is not disputed that the petitioner is a retired Government servant, and the respondent used to pay the rent to the petitioner since inception of his tenancy, i. e. , 1971. Initially, the rent of the suit-shop was Rs. 15/ -. It was increased from time to time to Rs. 18, Rs. 25/-, Rs. 40/-, Rs. 50/-, Rs. 75/- and to Rs. 90/- in the year 1981-82. The petitioner filed the earlier suit for ejectment against the respondent under Section 12 (1) (a) of the Act, wherein a compromise was arrived at between the parties, according to which, rent was increased from Rs. 50/- to Rs. 75/- from 1-9-1978 on the condition that the petitioner carries out necessary repairs in the suit-shop costing about Rs. 2000/ -. In the application for compromise (Ext. P-5), which is, admittedly, signed by the respondent and the petitioner, the respondent also admitted to be the tenant of the petitioner in para 1; para 2 related to the required repairs, in para 3 the respondent admitted that the tenancy is oral commencing from the first of each English calendar month. The decree (Ext. P-5), which is, admittedly, signed by the respondent and the petitioner, the respondent also admitted to be the tenant of the petitioner in para 1; para 2 related to the required repairs, in para 3 the respondent admitted that the tenancy is oral commencing from the first of each English calendar month. The decree (Ext. D-2) in terms of the compromise was passed by the Civil Court and the respondent started paying rent accordingly. After about 3 years rent was further nominally increased from Rs. 75/- to Rs. 90/ -. But the respondent never objected to the enhancement of rent by petitioner as owner, nor he objected that the compromise in the earlier suit was entered under compulsion or duress and, as such, the same is not binding. The respondent also did not take any action for setting aside the compromise decree passed in the earlier suit on the ground of any compulsion or duress. The respondent did not lead any evidence except his own statement that petitioner is not the exclusive owner of the suit-shop and other brothers are co-owners. The respondent was paying rent right from 1971 till the filing of the application for eviction before the Rent Controller. He never objected nor led any evidence to show that the suit-shop is the property of other co-owners also. It was also not stated by the respondent that other co-owners ever demanded rent from him as owners of the suit-shop or they objected for paying the rent to the petitioner. On the other hand, one of the co-owners, Dr. Jugal Kishore has stated that after the partition in December, 1971, all the 3 brothers are occupying their portions of the house exclusively as owners, which fell in their respective shares. It was affirmed by him that the suit-shop fell in the share of petitioner, and since this family arrangement, he is the owner of the suit-shop. Besides this, the admission of the respondent in the application for compromise in the earlier suit is not only an admission of payment of rent by the respondent to the petitioner but it also clearly establishes the relationship between the petitioner and the respondent as landlord and tenant, accepting the petitioner as owner of the suit-shop. This admission is an important piece of evidence. This admission is an important piece of evidence. If the respondent wanted to resile from the same he ought to have led evidence that this admission is not binding on him. The respondent has raised a defence in his pleadings that the admission was because of compulsion and under duress, but after 1978, when the admission was made, the respondent did not take any action to get the compromise decree, based on admission, set aside. Not only this, after about three years, again the respondent agreed with the petitioner to enhance the rent from Rs. 75/- to Rs. 90/- per month. The whole conduct of the respondent clearly establishes the admission of ownership of the petitioner in the suitshop, and the relationship of landlord and tenant between the petitioner and the respondent. The respondent since the inception of tenancy paid the rent to the petitioner and receipts were issued by petitioner to the respondent of rent, wherein the petitioner has been shown as owner of the suit-shop, and the respondent accepted him as owner throughout. In view of the above material, the contention of Shri K. B. Chaturvedi, learned counsel for the respondent, that, as partition deed has not been filed, all the three brothers continued to be co-owners of the suit-shop, cannot be accepted. The present case is not a case based on one document or an isolated single receipt. A number of counterfoils of rent receipt were produced before the Rent Controller by the petitioner, besides the application containing the admission of the respondent, on the basis of which the compromise decree was passed in the earlier suit. In the light of the above material, the Rent Controller acted illegally and seriously erred in holding that the other two co-owners have not been made party to the application, as the suit-shop is joint property of the 3 co-owners. In the facts of the case, non-production of the deed of partition or family arrangement is not at all fatal to the case of the petitioner. In the facts of the case, non-production of the deed of partition or family arrangement is not at all fatal to the case of the petitioner. The Apex Court had an occasion to consider a case of a landlord and tenant in similar situation in Dilbagrai v. Sharad Chandra, 1988 Jab LJ 560, wherein it was held though partition deed was not filed to prove ownership, admission by the tenant in the reply to quit notice and also in the rent receipts, of the landlord to be the owner is proof of the ownership of the suit property. In this case also, the respondent has accepted the petitioner as owner of the suit-shop not only in the application for compromise filed in the earlier suit but in the rent receipts as well. ( 8 ) IN view of the finding in the foregoing paragraph, I do not feel it necessary to deal with the alternative submission of Shri Tomar that even if the petitioner is considered to be a co-owner, the respondent has accepted the petitioner as landlord by attornment. Reliance was placed on a Single Bench decision of this Court in Sunderbai Jain v. Moolchand Agrawal, 1985 Jab LJ 447. It is also a settled view of this Court that out of several co-owners, who are landlords, if one co-owner is landlord of a specified category under Section 23-J of the Act, an application for eviction under Chapter III-A can be maintained on the ground of bona fide requirement, as the co-owners are not opposing the eviction proceeding initiated by the petitioner, the relief of eviction in such a situation cannot be refused if the suit-shop is "bona fide" required by the landlord for starting his own business. [see a recent Division Bench decision of this Court in Shivkumar v. Smt. Ashadevi, 1989 MPRCJ 88. ] ( 9 ) FROM the facts alluded above and the evidence on record, I have already held that the petitioner is the sole owner and other brothers and the legal representatives of the deceased brother are not the co-owners of the suit-shop. [see a recent Division Bench decision of this Court in Shivkumar v. Smt. Ashadevi, 1989 MPRCJ 88. ] ( 9 ) FROM the facts alluded above and the evidence on record, I have already held that the petitioner is the sole owner and other brothers and the legal representatives of the deceased brother are not the co-owners of the suit-shop. Therefore, the question of availability of reasonably suitable non-residential accommodation, which is said to be available adjacent to the suit-shop, or fallen vacant during the pendency of this revision, does not arise, as Shri Chaturvedi, learned counsel for the respondent, filed an application on 16-8-1989 under O. 6, R. 17 read with O. 7, R. 7, C. P. C. , to consider a subsequent event that the petitioner's brother Dr. Jugal Ktshore has expired and because of his death, the shop which was being used by Dr. Jugal Kishore as a consulting chamber, has fallen vacant. These shops do not belong to the petitioner nor the petitioner is in occupation of the said shops which are in the ownership of the other two brothers of the petitioner. ( 10 ) THE contention of Shri Chaturvedi, learned counsel for the respondent, that the application for eviction was filed by the petitioner with an oblique motive for enhancing the rent, as the petitioner enhanced rent from time to time, is also of no avail. It is true that when an application or a suit is filed for eviction on "bona fide" requirement either under Section 12 (1) (f) or under S. 23a (b) of the Act, the test which has to be applied by the Court is an objective test and not a subjective one, merely because the landlord asserts that he wants the non-residential accommodation for the purpose of starting or continuing his own business, that would not be enough to establish that he requires it for that purpose. The word 'require' signifies that a mere desire on the part of the landlord is not enough but. there should be an element of need, and the landlord must show that he genuinely requires the non-residential accommodation for the purpose of starting his own business. The word 'require' signifies that a mere desire on the part of the landlord is not enough but. there should be an element of need, and the landlord must show that he genuinely requires the non-residential accommodation for the purpose of starting his own business. It is also true that a Court or Rent Control must also see that, while considering the "bona fide" requirement, a landlord may not get a decree for eviction to get rid of an old tenant who is paying a low rent. ( 11 ) IF we look to the facts of this case, it is clear that rent was enhanced from time to time, but the rent so increased earlier was by mutual consent, and in the year 1978 by filing a compromise in the earlier suit and getting the necessary repairs done at the cost of the landlord. It is not a case of the respondent that the rent so increased could not have been increased according to the provisions of the Act. The respondent paid the rent so enhanced from time to time without any objection and without taking any recourse to law for getting the standard rent fixed under the provisions of the Act. Besides this, the Rent Controller has not held that the requirement of the petitioner is not "bona fide", that is to say, not in good faith, honestly and without any ulterior motive. Hence, Shri Chaturvedi's contention that the application was filed with an oblique motive to enhance the rent has no merit. ( 12 ) THE last contention of Shri Chaturvedi is that the petitioner retired on 31-5-1980, but he did not take any action for eviction of the tenant and joined the service in Sahkari Bazar on daily wages, therefore, he is not entitled to invoke the special provision under Chapter III-A of the Act. Admittedly, it is not a case where a retired Government servant let or re-let the premises after his retirement. After retirement the petitioner is getting pension of Rs. 280/- per month. Initially he tried to get an employment for meeting the basic needs of his life and got an employment on daily wages at the rate of Rs. 10/- per day. It has also come in the statement of the petitioner that this was not a regular employment and he was not getting work continuously on daily wages. 280/- per month. Initially he tried to get an employment for meeting the basic needs of his life and got an employment on daily wages at the rate of Rs. 10/- per day. It has also come in the statement of the petitioner that this was not a regular employment and he was not getting work continuously on daily wages. This employment came to an end in December, 1984, and since January 1985 the petitioner was not doing anything. The employment which the petitioner got was a stray employment, whereby he tried to pull on his family after retirement. Because of such an employment, it cannot be said that the petitioner was not entitled to invoke the special provisions of the Act for eviction of the tenant. Seeking a stray employment and not filing an application immediately after retirement cannot be said to be "mala fide". A bare perusal of Chapter III-A and other provisions of the Act shows that no period is prescribed for filing an application by a retired Government servant or any other landlord as specified in Section 23-J, nor any delay in filing the application for eviction creates any ban or any impediment or even any estoppel on the landlord. ( 13 ) FROM the foregoing discussion, I am of the opinion that the Rent Controller has committed an illegality in dismissing the application of the petitioner by ignoring the material facts and documents on record. The order of the Rent Controller deserves to be set aside and is hereby set aside. ( 14 ) IN the result, the application of the landlord seeking eviction from the suit-shop is allowed, and an order of eviction of the respondent/ tenant from the suit-shop is made on the ground specified in Cl. (b) of Section 23-A of the Act. It is directed that the petitioner shall not be entitled to take possession of the suit-shop before the expiration of the period of two months from the date of this order and unless the petitioner pays to the tenant or deposits with the Rent Controller compensation which is equal to double the amount of the annual standard rent of the suit-shop in accordance with the provisions of Section 23-G of the Act. To avoid any dispute in relation to the standard rent, it is ordered that the standard rent will be the agreed rent, i. e. , Rs. To avoid any dispute in relation to the standard rent, it is ordered that the standard rent will be the agreed rent, i. e. , Rs. 90/- per month. After the recovery of possession of the suit-shop, if the petitioner/ landlord violates any of the provisions of Cl. (3) and Cl. (4) of Section 23-G, the respondent/tenant shall be entitled to reentry in accordance with the provisions of Section 23-G of the Act. Let the record of the case be sent to the Rent Controller immediately. ( 15 ) PARTIES to bear their own costs. Order accordingly. .