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Madhya Pradesh High Court · body

2001 DIGILAW 720 (MP)

M. P. DONGRE v. KUSUMLATA SHUKLA

2001-10-04

S.P.KHARE

body2001
ORDER S.P. Khare, J. This is a revision by the tenant u/s 23E of the M. P. Accommodation Control Act, 1961 (hereinafter to be referred to as the Act) challenging the legality, propriety and correctness of the order passed by the Rent Controlling Authority (RCA) u/s 23A of the Act directing the tenant to put the landlord in possession of the suit accommodation. Undisputed facts of the case are that non-applicant M. P. Dongre is tenant of applicant Smt. Kusumlata Shukla in house No. 23, Anandnagar, Adhartal, Jabalpur at a monthly rent of Rs. 1,000/-. The house was let out to the non-applicant about 15 years ago for residential purpose. At that time the applicant was working as Assistant Surgeon at Balaghat and she was a Government servant. She has retired from that post on 9-5-1984. She is covered under the definition of "landlord" given in Section 23-J(i) of the Act. The case of the applicant is that she bona fide requires the suit accommodation for her own residence and for her son Dr. Sameer Shukla. She has pleaded that she has no other accommodation of her own at Jabalpur. She is at present living at Balaghat where her elder son Dr. Sanjay Shukla and his wife are running a nursing home known as "Shukla Nursing Home". She wants to shift to Jabalpur and live in the suit house. She is suffering from various ailments such as diabetes and heart trouble and she is required to come to Jabalpur quite often for medical check-up. Her second son Dr. Sameer Shukla has passed M.B.B.S. in 1992 and M.S. in 1997 and he wants to set up his medical practice at Jabalpur. She would live in the suit house with her son Sameer. The case of the non-applicant is that the alleged need of the applicant is not bona fide. The applicant is practising at Balaghat and she does not want to shift to Jabalpur. It is further pleaded that the applicant wants to sell the suit house and for that purpose she has issued an advertisement in the newspaper in the year 1995 and her husband had written several letters Ex. D-2 to D-7 to the non-applicant in the year 1990 expressing his intention to sell the house and he had made an offer to the non-applicant also to purchase this house if he so desires. D-2 to D-7 to the non-applicant in the year 1990 expressing his intention to sell the house and he had made an offer to the non-applicant also to purchase this house if he so desires. It is pointed out that the applicant's son Dr. Sameer Shukla and his wife are in Government service and" their need is also a pretense. The Rent Controlling Authority after considering the evidence adduced by both the sides has held that the Plaintiff bona fide requires the suit house for the residence of herself and her son and passed the impugned eviction order. The point for determination in this revision is whether the applicant bona fide requires the suit accommodation for her residence and for her son Sameer. The revisional power conferred by Section 23-E of the Act is larger than the revisional jurisdiction u/s 115, Code of Criminal Procedure but lesser than the appellate power. Construing the words "legality, propriety or correctness" in this section it has been held in B. Johnson Vs. C.S. Naidu, that the power of revision is not restricted to the narrow limits of Section 115, CPC but it is not as wide as that of an appeal and the indication is that an attempt should be made to keep as nearly as possible to the limits of power of revision u/s 115, CPC exceeding the same only to the extent necessary for preventing miscarriage of justice. The finding of the fact arrived at by the R.C.A. regarding the bona fide requirement of the landlord can be disturbed in revision if it is perverse and not simply on the ground that another view is possible on reappreciation of the evidence. In Sarla Ahuja Vs. United India Insurance Company Limited, the Supreme Court has observed while interpreting Section 25B(8) of the Delhi Rent Control Act, 1958 that it is not permissible for the High Court in the exercise of the revisional power to come to a different fact finding unless the finding arrived at by the Rent Controller on the facts is so unreasonable that no Rent Controller should have reached such a finding on the materials available. It has been further observed that while exercising revisional jurisdiction, a reappraisal of evidence can be made, but that should be for the limited purpose of ascertaining whether the conclusion arrived at by fact finding Court is wholly unreasonable. It has been further observed that while exercising revisional jurisdiction, a reappraisal of evidence can be made, but that should be for the limited purpose of ascertaining whether the conclusion arrived at by fact finding Court is wholly unreasonable. Again in Rafat Ali Vs. Sugni Bai and Others, the words "legality, regularity or propriety" used in Section 22 of the A. P. Building (Lease, Rent and Eviction) Control Act, 1960 were the subject matter of interpretation and it was held that even such a widely worded frame of Section 22 may at best indicate that the revisional powers are not so restricted as in other enactments where the words are not so widely framed. Nonetheless, they remain in the realm of supervisory jurisdiction. In Vaneet Jain v. Jagjit Singh, AIR 2000 SC 2080 it has been reiterated that the High Court while exercising the revisional jurisdiction can reappraise the evidence only for a limited purpose for ascertaining as to whether the conclusion arrived at by the fact finding Court is "wholly unreasonable". In view of the above legal position the evidence in the present case is to be looked into for the purpose of ascertaining whether the finding of the R.C.A. is perverse or unreasonable. Applicant Dr. Kusumlata Shukla (P.W. 3) has deposed that she requires the suit house for the residence of herself and her son Sameer and she has no other house at Jabalpur. She has further stated that the house at Balaghat in which she is living at present belongs to her son Dr. Sanjay Shukla. She does not want to sell the suit house. Rajendra Nath Shukla (P.W. 1) has stated that the applicant is his wife and she is suffering from diabetes and heart problem and she is required to come to Jabalpur very often for medical check-up and treatment. He has stated in cross-examination that his wife does not want to sell this house. He admits that in the year 1990 he had written letters Ex.D-2 to D-7 to the non-applicant expressing his desire to sell the house and he had made an offer to the non-applicant through these letters to purchase this house. He has added that now he does not want to sell the house as the circumstances have changed and he would live with his wife and his son Sameer in this house. His son Dr. He has added that now he does not want to sell the house as the circumstances have changed and he would live with his wife and his son Sameer in this house. His son Dr. Sameer has done M.S. and he is at present in Government service at Betul. Dr. Sanjay Shukla (P.W. 2) has testified that his mother wants to live at Jabalpur with his brother Dr. Sameer who would start private practice at Jabalpur and leave the Government service. He has further deposed that the house at Balaghat is owned by him. Dr. Sameer Shukla (P.W. 4) has deposed that he has done M.S. and he wants to set up his medical practice at Jabalpur and would live with his mother in the suit house. He would leave the Government service. On the other hand non-applicant Madhukar Dongre (D.W. 1) has deposed that the applicant is living permanently at Balaghat and she wants to sell the suit house. She has issued the advertisement Ex.D-1 for this purpose in the newspaper. Her husband wrote to him letters Ex.D-2 to D-7 in the year 1990. He admits in cross-examination that the applicant has no other house at Jabalpur. From the evidence discussed above it is clear that the applicant requires the suit house for her residence and for the residence of her son Sameer. She has no other house at Jabalpur. The house at Balaghat is owned by her son Dr. Sanjay. She wants to shift to Jabalpur. Legally she cannot be forced to stay at Balaghat. She has a fundamental right to reside and to settle at the place of her choice as per Article 19(1 )(e) of the Constitution of India. Even the Court cannot interfere in the predilection shown by her. She is the best judge to decide where she wants to settle and she has complete freedom in that matter. The R.C.A has considered all the aspects and his finding cannot be said to be perverse or unreasonable. The applicant has established her requirement for the suit accommodation. It has been argued on behalf of the non-applicant that the requirements of the applicant is not bona fide but a mere pretense as she wants to sell this house as indicated by her husband in the letters Ex.D-2 to D-7. This argument has no substance. The applicant has established her requirement for the suit accommodation. It has been argued on behalf of the non-applicant that the requirements of the applicant is not bona fide but a mere pretense as she wants to sell this house as indicated by her husband in the letters Ex.D-2 to D-7. This argument has no substance. These letters were written in the year 1990 and at that time Sameer was only a student. Now he has done M.B.B.S. in 1992 and M.S. in 1997 and if the applicant has changed her mind to live in the house and not to sell it there is nothing wrong in it. Even if it is held that the applicant at some point in the past thought of selling the suit house that does not smack of her mala fides. After all the house belongs to her. She might have explored the possibility of selling this house when the tenant was not vacating it, with the intention of buying or building another house with the sale-proceeds and reside in that house. She must have some shelter of her own. Therefore, an attempt by the landlord to sell the house does not always show his lack of bona fide requirement. It is well known that eviction through the process of the Court is tardy, tedious and time consuming. Even after the legislature has stepped into make special provision for eviction of tenant on the ground of bona fide requirement of certain specified categories of landlords in Chapter III-A of the Act and further laying down in Section 23-D(3) in this chapter that in respect of an application by a "landlord" it shall be presumed, unless the contrary is proved, the requirement by the landlord with reference to Clause (a) or Clause (b), as the case may be, of Section 23-A is bona fide. If the requirement is proved it is presumed to be bona fide. Even with the aid of such statutory provisions, it is seen, that it takes years and years to establish "bona fide need" (even the present case has consumed nearly six years) and if in such a situation the landlord out of disgust entertains a concurrent idea to sell the accommodation and arrange an alternative shelter speedily that does not necessarily negate his bona fide requirement. The decision of the R.C.A in the present case is correct. The decision of the R.C.A in the present case is correct. It cannot be said to be perverse or unreasonable. The revision is dismissed. Final Result : Dismissed