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Madhya Pradesh High Court · body

2004 DIGILAW 538 (MP)

Chhabbaldas through L. Rs. v. Nirmala Devi

2004-07-14

SHANTANU KEMKAR

body2004
ORDER Shantanu Kemkar, J. 1. This is a revision filed by the applicants/tenants under section 23-E of the M. P. Accommodation Control Act, 1961 against the order dated 23-4-2003 passed by Rent Controlling Authority, Bhopal hereinafter referred to as 'Authority' in Case No. 1 l/RCA/96. 2. The brief facts necessary for the disposal of this revision are that the non-applicant landlord had filed an application under section 23-A(b) of the M. P. Accommodation Control Act, 1961 (hereinafter referred to as 'Act') seeking eviction of the applicant/tenant from shop No. 1/7 situated at Ward No.4 of Bairagarh. The non-applicant landlord in her application had pleaded that she is widow of Hotchand. Hotchand had filed a suit for eviction against the applicant. During the pendency of the suit he died. His widow non-applicant withdrew the suit from the Court of Vllth Civil Judge, Class-U, Bhopal with permission to file application before the Authority. On being permitted the application has been filed before the authority, seeking eviction of applicant/ tenant on the ground that the suit shop is bona fidely required by her for starting cloth business of her son Deepak who is presently unemployed and for this she has no other suitable accommodation in the city of Bairagarh and Bhopal. 3. The applicant/tenant opposed the application by filing his reply. In the reply he contended that the suit shop has not been properly described by the non-applicant landlord and the same is not required bona fidely by her for starting business of her son. Her son is doing the business of Life Insurance Company and she is having other shops in the Bhopal City. 4. The Authority after framing issues recorded evidence of both the sides and vide impugned order has held the non-applicant is owner of the suit shop and she has proved her bona fide need of the suit shop for starting cloth business of her son Deepak for that she has no other premises in the city of Bhopal. The application was allowed and the applicant/tenant was directed to vacate the suit shop within two months. 5. Heard Shri Ajay Ojha, learned counsel for the applicants and Shri S.A. Sobhani, learned counsel for the respondents. Perused record and also the written submission filed on behalf of the applicant. 6. The application was allowed and the applicant/tenant was directed to vacate the suit shop within two months. 5. Heard Shri Ajay Ojha, learned counsel for the applicants and Shri S.A. Sobhani, learned counsel for the respondents. Perused record and also the written submission filed on behalf of the applicant. 6. Learned counsel for the applicant has submitted that the non-applicant has not been able to prove her ownership of the suit shop since the sale deed Ex.P/2 by which her husband acquired title pertains to shop No. 1/8 while the suit shop is shop No. 1/7. It is also submitted that the non-applicant has failed to prove her bona fide requirement and the Authority has ignored the material evidence in this regard. It is also submitted that as per the agreement Ex. P/6 notice of one month has not been given and therefore the application is not maintainable. He also submitted that the Authority has illegally shifted the burden on the applicant to prove that the need of the non-applicant is not bona fide. 7. Shri S.A. Sobhani, learned counsel appearing for the non-applicants has submitted that in view of the admitted position about the suit shop and the specific pleadings of the non-applicant about the description of the suit shop, the map Ex. P/5 and the sale deed Ex.P/2, there is no ambiguity in the description and title of the suit shop. It has been further submitted that since in the suit filed by the husband of the non-applicant as well as the application filed by the non-applicant before the Authority the applicant/tenant having admitted the landlord-ship is estopped from challenging the ownership of the non-applicant. Relying on the Judgment passed by the Supreme Court in case of V. Dhanapal Chettiar v. Yesodai Ammal, 1979 MPLJ (SC) 719 : AIR 1979 SC 1745 , it has been submitted that the issuance of the notice is not necessary further submitted that the non-applicant had fully established her bona fide need of the suit shop for starting cloth business of her son. He thus supported the impugned order. 8. Before the Authority the non-applicant Smt. Nirmala Devi examined herself as PW1. In her evidence she has deposed that her husband Hotchand had filed a civil suit against the applicant and after death of Hotchand she was permitted to withdraw the suit and as such she being widow filed the present application. He thus supported the impugned order. 8. Before the Authority the non-applicant Smt. Nirmala Devi examined herself as PW1. In her evidence she has deposed that her husband Hotchand had filed a civil suit against the applicant and after death of Hotchand she was permitted to withdraw the suit and as such she being widow filed the present application. She has also proved the description of the suit shop on the basis of sale deed Ex. P/2 and map Ex. P/5. On a perusal of the sale deed Ex.P/2 I find no substance in the submissions made by the learned counsel for the applicant that in the sale deed the shop is described as shop No. 1/8, on close scrutiny of sale deed Ex. P/3 is clear that the property which is sold by the sale deed is 'the shop' of which old No. is 1/8. In the boundaries described in the sale deed it has been specifically mentioned that in the east of shop which is sold is new shop No. 1/8 serial No. 214 and in the west new shop No. is 1/6 serial No. 216 is situated. In this view of the matter, I find that the suit shop is the shop No. 1/7, of which the non-applicant is claiming to be the owner through registered sale deed Ex. P/2. In the evidence of Notandas (PW2) he deposed that the applicant is tenant of Hotchand in shop No. 1/7. Hotchand died and the non-applicant is his wife. Jethanand (DW1) who is son of the applicant has admitted that his father has taken the suit shop on rent as described in map Ex. P/5 from Hotchand. Govardhan (DW3) in his evidence has also admitted that the suit shop is the same as described in map Ex. P/5. Thus, the submission of the learned counsel for the applicant that the description of the property is not clear and the non-applicant could not establish the ownership of suit shop is misconceived. The aforesaid evidence is clear and proves beyond doubt that Ex.P/2 sale deed pertains the suit shop of which the eviction is sought. 9. Coming to the next submission about genuine requirement of the non-applicant. The aforesaid evidence is clear and proves beyond doubt that Ex.P/2 sale deed pertains the suit shop of which the eviction is sought. 9. Coming to the next submission about genuine requirement of the non-applicant. Non-applicant (PW1) has specifically pleaded and has proved in her deposition that the suit shop is bona fidely required by her for starting cloth business of her unemployed son Deepak and her son Deepak has got experience for the same as he used to work in the shop of Hasmat Rai. She has also deposed that she has got no other shop of her own or in the name of her son Deepak in the city of Bairagarh and Bhopal. Notandas (PW2) has deposed that Deepak is unemployed and is not doing any business, he used to serve earlier in a cloth shop, non-applicant has no other shop in Bairagarh or Bhopal. Deepak (PW3) has deposed that about 10 years prior he served in the shop of Kanhiyalal Hasmat Rai and he served there for about 8 years and since last four or five year he is unemployed. No material point in his entire cross-examination has come so as to disbelieve the need established by the non-applicant and her son Deepak (PW3). 10. Section 23-D, sub-clause (3) of the M. P. Accommodation Control Act provides as under: In respect of an application by a landlord, who is a retired servant of any Government including a retired member of Defence Services or a retired servant of a company owned or controlled either by the Central or any State Government, or a widow or physically handicapped persons, it shall be presumed, unless the contrary is proved, that 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". In view of the aforesaid clear provision contained in the Act in my opinion, on the basis of averments and the evidence led by the parties the learned Authority has committed no error in holding the non-applicant's requirement of the suit shop to be bona fide. 11 In view of the judgment, reported in 7979 MPLJ (SC) 719 : AIR 1979 SC 1745 relied by the learned counsel for the non-applicant notice is not necessary before filing application for eviction. 12. Accordingly I find that there is no perversity in the findings recorded by the Authority. 11 In view of the judgment, reported in 7979 MPLJ (SC) 719 : AIR 1979 SC 1745 relied by the learned counsel for the non-applicant notice is not necessary before filing application for eviction. 12. Accordingly I find that there is no perversity in the findings recorded by the Authority. 13. The applicant/tenant shall hand over the vacant possession of the suit shop within two months time to the non-applicant landlord. The applicant is entitled to get compensation as per section 12(6)(b) of the Act. 14. With this, revision fails and is dismissed. No order as to cost.