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1997 DIGILAW 135 (MP)

Dayal Dhanka v. Kanhaiyalal

1997-03-11

A.R.TIWARI

body1997
ORDER A.R. Tiwari, J. 1. What a scene ? The same Authority on the same day on similar facts has said monosyllabic 'yes' to relief in one case and 'no' in the other. Here then is the inconsonant conundrum. Law and logic are not distance neighbours. So I begin at the beginning. 2. The aforesaid two revision petitions, first by the tenant and second by the landlord are heard as connected matters, in view of admitted position of involvement of common question of facts and law, and are being decided by this common order. 3. Facts are jejune. Kanhaiyalal (Non-applicant of Civil Revision No. 910 of 1994 and Applicant of Civil Revision No. 1062 of 1994) purchased the tenanted accommodation, House No. 1266, situated in Dhanka Mohalla, Meemuch Cantonment and consisting of two rooms, (one room occupied by Dayal and the other room, No. 2 of eastern side occupied by Prabhulal as tenants under separate contract of tenancy at monthly rent of Rs. 10-00 (Ten rupees) each for residential purpose) by the registered sale-deed dated 6.5.1978 from former landlord the registered sale-deed dated 6.5.1978 from former landlord owner, Kanhaiyalal s/o Shivbux on consideration of Rs. 3,000/-. The purchaser-landlord was an employee of Railway Department and retired from service on 31.12.1978, i.e. after the purchase. After quit notices, he filed the applications for eviction. Revision-wise facts are as noted below. 4. (i) Civil Revision No. 910 of 1994; This is the case of "yes" to relief. The tenant has filed this revision petition under Section 23-E of the M.P. Accommodation Control Act, 1961 (for short 'the Act') against the order of eviction dated 12.8.1994 passed by Rent Controlling Authority, Neemuch under Section 23-A(a) of the Act, for occupation as residence on an application presented on 26.3.1985 by the landlord, being the landlord of specified category under Section 23-J of the Act and registered as 17 - 90(6)84-85. Leave to defend was granted under Section 23-C of the Act. Final order was passed after about NINE years in utter disregard of section 23-D(1) of the Act. Final order of eviction is impugned by the tenant herein. (ii) Civil Revision No. 1062 of 1994: This is the case of "no" of relief. Leave to defend was granted under Section 23-C of the Act. Final order was passed after about NINE years in utter disregard of section 23-D(1) of the Act. Final order of eviction is impugned by the tenant herein. (ii) Civil Revision No. 1062 of 1994: This is the case of "no" of relief. The landlord has filed this revision petition under Section 23-E of the Act against the order of rejection dated 12.8.1994 passed by Rent Controlling Authority, Neemuch on an application, presented on 18.3.1985 by the same landlord and registered as 15 - 90(6)/84-85, under Section 23-A(a) of the Act for occupation as residence. Earlier this application was allowed and order of eviction was passed on 23.10.1991 i.e. after about six years. The tenant filed Civil Revision No. 415 of 1991 against this order and secured dislodgement and remittal on 8.10.1993 with directions for fresh decision taking into account import and effect of the letters marked as Exs. D/2, D/3 and D/4, from the landlord to the tenant, offering sale of the accommodation on proper price and expressing opinion with regard to delay in institution of proceedings. The copies of these letters are proved in Civil Revision No. 910 of 1994 and marked as Exs. D/10, D/11 and D/12 (Page 2 of the statement of DW-1 Dayal). After remand, Rent Controlling Authority considered the issue afresh and rejected the application for eviction on conclusion that requirement can be held as existent but not as "bonafide". Final order of rejection is assailed by the landlord herein. 5. It is amazing that Rent Controlling Authority on the same date as noted at the threshold, deemed it just and proper to pass conflicting orders. Such an approach cannot be categorized as orphic or opinionative. Does the defence of two tenants, living in neighbourhood on Rs. 10-00 per month each, contain any bradawl or brunt ? 6. It have heard Shri B.L. Pavecha, learned senior counsel with with Sunil Jain for the tenant and Shri S.S. Garg, learned counsel for the landlord in both these revision petitions today. The counsel seemed unable to comprehend as to how two cases, resting almost on similar fact-situation could suffer different fate? 7. Shri Pavecha submitted, with reference to proximity of dates, that letters Exs. D/10 to D/12 x-ray the mind and intent and deliver dent, beyond repair, on the ground of eviction as presented. The counsel seemed unable to comprehend as to how two cases, resting almost on similar fact-situation could suffer different fate? 7. Shri Pavecha submitted, with reference to proximity of dates, that letters Exs. D/10 to D/12 x-ray the mind and intent and deliver dent, beyond repair, on the ground of eviction as presented. He further contended that delay is yet another factor to show that ground is meretricious. In further pursuit he urged that order of eviction is devoid of objectivity and needs to be annihilated. 8. Shri Garg, on the other hand, submitted that letters Exs. D/10 to D/12 were written to maintain cordiality but the same did not have the potential to cause cessation of bonafide need. He contended that retired employee needed money by sale to search other accommodation as litigations normally take considerable time or vacant possession to live in peacefully. In short, he urged that revision petition by the tenant may be dismissed and revision petition by the landlord may be allowed. 9. As directly by this Court on 3.2.1997, the parties also appeared in person today. The counsel submitted that tenants show their willingness to purchase on current price. The counsel for landlord consulted his client and said "no" to this offer. There is no explanation as to why the offer was not accepted in 1980 ? Lord Tennyson had once said change is the law of nature. Ring out the old into new. So position is now. The intention of sale in 1980 or of purchase in 1997 is like an epithalamium lacking sonority. The material issue is whether there is real need to dishest tenants ? 10. In case against Dayal (Civil Revision No. 910 of 1994), the Rent Controlling, Authority concluded that the accommodation is required bonafide for occupation as residence and there was no other reasonably suitable residential accommodation to satisfy this requirement. In case against Prabhulal (Civil Revision No. 1062 of 1994) the Rent Controlling Authority concluded that there was requirement with absence of alternative accommodation but not bona fide in the face of delay and offer of sale via three letters (Para 9 of the order). 11. In this back drop three questions crop up for answers:- (i) What is the import and effect of three letters 7 Do they show that ground of eviction is artificial ? 11. In this back drop three questions crop up for answers:- (i) What is the import and effect of three letters 7 Do they show that ground of eviction is artificial ? (ii) What is the impact of delay in recourse to proceedings ? (iii) Whether order of eviction is sustainable and whether order of rejection, incongruous as it is, is subvertible ? 12. I have thus read the letters (Exs. D/2 to D/4 i.e. Exs. D/10 to D/12) forwarded on 9.8.1980; 30.8.1980 and in September, 1980. In letter dated 9.8.1980, it is conveyed that,- The other two letters also do not contain different tone or tune. Letters were sent only to Prabhulal and not to Dayal. In none of these letters, there is any whisper, much less declaration, that there is no bonafide requirement or there is other suitable accommodation to live in after retirement. There is no visibility of malafide or evil-design or oblique motive. The litigations take consideration time and make litigation tired of waiting. By now, about twelve years have rolled by even in proceedings supposed to be summary in nature. The landlord thus seems to have thought at one stage in 1980, before initiation of proceedings to sell to buy peace and to avoid litigations and plan for something else as is luculent from this feeling- Left to themselves, many may be in a mood to avert occasion of protracted litigation. Litigation is last resort. The impugnation, resting on linchpin of letters alone, seems to lack concinnity. 13. By the language employed in the letters and by the feeling expressed therein, I am satisfied that these do not demonstrate destructibility of the ground of eviction and do not make it meretricious. It is not suggested that the landlord is possessed of reasonably suitable residential accommodation of own in the place concerned. That being so me letters of offer long before the cases to one of tenants, without response and anything more, cannot collapse the claim founded on ground incapable of being dubbed as malafide or elfish. 14. As regards the question of delay, I find that there is embargo of one year in terms of Section 12(4) or proviso to Section 23-A of the Act. 14. As regards the question of delay, I find that there is embargo of one year in terms of Section 12(4) or proviso to Section 23-A of the Act. Then suit was initially filed in civil Court and later applications, after withdrawal were filed under Chapter III-A inserted by M.P. 27 of 1983 effective from 16.8.1983 to obtain orders in summary proceedings. And some margin may be allowed in the fact of letters of 1980. It take some time of decide whether there can be freedom from litigations. Hence mere delay, without anything more, in there facts and circumstances does not tilt the balance in favour of the tenants. 15. Hence the delay cannot be taken as indicative of non-existence of bonafide need. 16. The queer position is that of the tenants, when offered, did not elect to purchase and both the tenants declined to vacate. These two inconsistent things tell their own tale. 17. The expression "bonafide or genuine'" means honestly or in good faith and "requires" can notes as something more than a mere wish or desire. Objection test, as held in 1989 (11) M.P.W.N. 143 (Hariram Soni v/s Smt. Sushila) is to be applied. Under Section 23-D (3), substituted by M.P. 7 of 1985, there is presumption about bonafide. The evidence led in this cogently made out the case for order of eviction. The finding in Civil Revision No. 910 of 1994 is sustainable and conclusion about absence of bonafide in Civil Revision No. 1062 of 1994 is perishable. 18. In Cohens v. Virgina (6 Wheaton 264 - 1821) Mr. Chief Justice Marshall, delivering the opinion of the Court, had very aptly begun as under:- This is a writ of error to a judgment rendered in the Court of Hustings for the borough of Norfolk. The same can appropriately be said about the order challenged in Civil Revision No. 1062 of 1994. It contained error and needed correction. 19. On a careful scrutiny, I hold that Rent Controlling Authority committed no error in ordering eviction in one case but committed error in refusing eviction in the other case despite conclusion about existence of the requirement. Law has to lead to justice and law and Justice cannot be seen as distant neighbours. The order passed in Civil Revision No. 1062 of 1994 is thus in - firm, illegal and perverse meriting to be mortalised. Law has to lead to justice and law and Justice cannot be seen as distant neighbours. The order passed in Civil Revision No. 1062 of 1994 is thus in - firm, illegal and perverse meriting to be mortalised. To put it differently, the defence is commodious, not cogent. 20. Ex consequent, I hold that import and effect of three letters, 17 years old by now, are nil so far as need is concerned and these do not render to ground as artificial. I also hold that the delay, is inconsequential. It is futile to talk of delay when litigations themselves have consumed so much time ? The order of Civil Revision No. 910 of 1994 is accordingly sustainable and the order of Civil Revision No. 1062 of 1994 is subvertible. These are the answers to questions chronicled in Para 11 above. This common order now removes the conflict abhorrent in law and ligic. 21. Accordingly, I dismiss Civil Revision No. 910 of 1994 with costs and allow Civil Revision No. 1062 of 1994, vacate the order of rejection and order eviction of the non-applicant/tenant on the ground specified under Section 23-A(a) of the Act in terms noted below with costs:- (i) The applicant of Civil Revision No. 910 of 1994 is granted two months time to vacate from today on condition of his filing usual undertaking before Rent Controlling Authority, Necmuch, on terms and conditions, us may be fixed by the Authority, in ten days from to day. In default, order of eviction shall remain executable atonce. (ii) The applicant of Civil Revision No. 1062 of 1994 shall not be entitled to obtain possession from the non-applicant/tenant before the expiration of a period of two months from the date of this order as mandated by Section 23-C(1) of the Act. 22. The counsel fee for each side is fixed as Rs. 500-00 in each case, if certified. Memos of costs be prepared in each case. Retain this order in Civil Revision No. 910 of 1994 and place its copy of Civil Revision No. 1062 of 1994. 23. The controversy between the parties to the lis is determined. But I should say something more. Revisional power is akin to superintendence as is permissible under Article 227 of the Constitution of India. Retain this order in Civil Revision No. 910 of 1994 and place its copy of Civil Revision No. 1062 of 1994. 23. The controversy between the parties to the lis is determined. But I should say something more. Revisional power is akin to superintendence as is permissible under Article 227 of the Constitution of India. One application of 1985 was decided on 12.8.1994 and the other of 1985 was disposed of initially on 23.10.1991 and after remand again on 12.8.1994. In both the cases, there is inordinate delay. In A.I.R 1987 S.C. 2117 (Prahhakaran Nair et. etc. v/s. State of Tamil Nadu and others) the Apex Court ruled that "litigations must come to end quickly" in the context of case between landlord-tenant. This object is highlighted by Section 23-D(1) of the Act which provides that- 23-D Procedure to be followed by Rent Controlling Authority or grant of leave to tenant to contest.- (1) Where leave is granted to the tenant to contest the application, the Rent Controlling Authority shall commence the hearing of the application as early as practicable and decide the same, as far as may be within six months of the order of granting of leave in the tenant to contest application. This Court feels uneasy to find that Rent Controlling Authorities are giving precious little attention to this. The expression "as early as practicable and decide the same, as far as may be within six months of the order of granting of leave" has to be understood properly and legislative intent cannot be sent on holiday. One factor causing delay of this enormity may be casual or usual attitude or procedural wrangle. The other factor may be congestion of calendar. This first factor i.e. procedural wrangle or attitude, poised to erode faith in justice system has to be combated with focus on legislative intent. The other factor should have perused the concerning Rent Controlling Authorities, if justified on facts and figures, to submit proper request to concerning Collectors for more appointment for the area, under Section 28 of the Act particularly in the face of Section 23-D(1) of the Act. The cachexy has to be clavicled with certitude. This Court cannot be expected to ignore such non-chalan or delays and cannot sit with folded hands to permit lightly the breach of legislative intent. The delay is "Tant Pis". One should, therefore, be willing to say "spero meliora". The cachexy has to be clavicled with certitude. This Court cannot be expected to ignore such non-chalan or delays and cannot sit with folded hands to permit lightly the breach of legislative intent. The delay is "Tant Pis". One should, therefore, be willing to say "spero meliora". Justice system cannot be seen to become teasing illusion. Inexcusable delays may be viewed seriously. Rent Controlling Authorities shall note this caution for compliance. 24. The Registrar of this Court shall cause circulation of this order to all the Rent Controlling Authorities, posted in the jurisdiction of this Court with promptitude. 25. A copy of this order shall also be endorsed immediately to the Chief Secretary, Government of Madhya Pradesh, Bhopal, for appropriate action within reasonable time where-ever it may be deemed necessary, on pertinence of Para 23 above. I say no more today. Let this Court have nothing in this regard to say tomorrow.