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2004 DIGILAW 618 (MP)

Vimal Upadhyay v. Harisingh

2004-08-04

P.C.AGARWAL

body2004
ORDER 1. By impugned order dated 22.2.2003 the Rent Controlling Authority, Indore (RCA for short) has ordered re-entry of the non-applicant/tenant under section 23-G(3) & (4) of the M.P. Accommodation Control Act, 1961 (Act for short). 2. Facts necessary for decision of this revision, in brief, are as follows : (A) Late Prashant Kumar Chourasia (NA 2) (since dead, represented by his legal representatives NA 2/a to 2/e), had applied for eviction of Harisingh (NA 1)-the tenant, from house No. B/94, MIG Colony, Indore on the ground of bona fide requirement for his own residence after his retirement before RCA. This application No. A-90(7)-34/9011997 was allowed on 30.11.1998. Revision by Harisingh (NA 1) was dismissed by this Court and late Prashant Kumar Chourasia (NA 2) had obtained vacant possession of the house on 9.2.1999 in execution. (B) On 22.11.2000 Harisingh (NA 1) applied for his re-entry under section 23-G of the Act and on 20.8.2001 obtained a temporary injunction from RCA against alienation and transfer of possession of the suit house to anyone else. (C) On 24.7.2001 late Prashant Kumar Chourasia executed a registered sale-deed in favour of applicants here for a consideration of Rs. 8.11 lacs. (D) On application by Harisingh (NA 1) dated 28.8.2001 both the applicants were impleaded as non-applicants. . 3. Harisingh (NA 1) had claimed that late Prashant Kumar Chourasia had not occupied the house for his own or family's residence even for a day after getting its vacant possession and had kept the same locked. According to him, ground taken for eviction by late Prashant Kumar Chourasia had been false. He had been trying to sell the house after getting the same vacated and thus, Harisingh (NA 1) has become entitled to re-entry. 4. On the other hand, late Prashant Kumar Chourasia in his written reply had claimed that he had got cleaned and repaired the suit house within four days of getting vacant possession thereof and had started living therein, with his wife. However, he developed illness of failure of both the kidneys and thus, his son had taken him back to Bhopal for his treatment, dialyses and transplantation of kidney etc. According to him he was compelled to sell the house to meet with his treatment expenses. However, he developed illness of failure of both the kidneys and thus, his son had taken him back to Bhopal for his treatment, dialyses and transplantation of kidney etc. According to him he was compelled to sell the house to meet with his treatment expenses. The purchaser had got published public notices in daily news paper 'Agniban' and 'Prabhat-Kiran' about such intended sale, yet, no objection was raised by Harisingh (NA 1). Then, Late Prashant Kumar Chourasia had died on 23.9.2002 and his legal representatives were brought on record in his place. 5. Applicants in their reply claimed that they have been bona fide purchasers for valuable consideration without notice of the application of Harisingh (NA 1) for re-entry. Sale of the house in their favour had taken place after more than 2 years of getting vacant possession by late Prashant Kumar Chourasia. It was claimed that there had been no privity of contract between them and Harisingh (NA 1) who was not their tenant. Before the purchase, public notices were got published in daily news paper by these appellants. It was pleaded that Harisingh ((NA 1) had not filed this application for re-entry within six months of accrual of the cause of action in his favour as is required under Rule 3 of the M.P. Accommodation Control Rules, 1962. 6. Under section 23-E of the Act this Court has to satisfy itself as to legality, propriety or correctness of the order and as to the regularity of the proceedings of the RCA. Certainly, its powers of appreciation of evidence are wider than that of a revisional Court under section 115 of the Code of Civil Procedure (Code for short), yet certainly, it is not an appeal Court. Finding of fact cannot be lightly interfered with by this Court. Nor re-appreciation or re-appraisal of evidence is permitted. P.M. Punnwose v. K.M. Munneruddin [ (2003) 10 SCC 610 ], Atma G. Berar v. Mukhtiar Singh [ (2003) 2 SCC 3 ], Ram Dass v. Ishwar Chander [ (1988) 3 SCC 131 ], unless the findings recorded by RCA are either perverse or arbitrary or against the established principles of law, this Court cannot interfere merely because it is inclined to take a different view of the evidence on record. 7. The learned RCA did not find the theory put by Prashant Kumar Chourasia proved or truthful. 7. The learned RCA did not find the theory put by Prashant Kumar Chourasia proved or truthful. Though, Prashant Kumar Chourasia (NA W 1) on his examination before the Commissioner appreciated by RCA had put such a case of his residence up to 19th December, 2000. Mukesh (NA W 3) and Kumar (NA W 2) supported such a case. However these straight forward statements had not been consistent on it. Late Prashant Kumar Chourasia had been residing at Bhopal. He was examined by Commissioner appointed by RCA at his residence at Bhopal. Though, he had claimed that he had come to Indore to live in the disputed house and had lived there for well over one year and 10 months. Yet from record it is clear that there had been no electric or water connection in the disputed house. No electricity or water bill if paid had been submitted. No bills or vouchers for transfer of luggage from Bhopal to Indore had been submitted. No bills or vouchers for repairs effected necessary cleaning done to render the disputed house habitable had been filed. No prescription of the doctors or bills or vouchers for purchase of medicines at Indore when Prashant Kumar Chourasia became seriously ill at Indore has been submitted. As such the finding of fact recorded by the RCA could not be said to be either perverse or arbitrary, particularly, in view of statements of Harisingh (AWl), Madansingh Yadav (A W 2), the neighbour Shailendra Singh (A W 3) and Thakur Mohan Singh (A W 4) which had been definite on their stand. That Prashant Kumar Chourasia had not lived in the house. Merely because in the application for re-entry filed on 22.11.2000 Harisingh (NA 1) had given address of Prashant Kumar Chourasia as B-94, MIO Colony, Indore it could not be inferred that actually Prashant Kumar Chourasia had come to live at that address and was actually residing therein particularly when Harisingh (NA 1) had been specifically denying such fact in this application. It is note worthy that the show-cause notice could not also be served on Prashant Kumar Chourasia on his Indore address and had to be got served at Bhopal. 8. It is note worthy that the show-cause notice could not also be served on Prashant Kumar Chourasia on his Indore address and had to be got served at Bhopal. 8. Language of Rule 4 of M.P. Accommodation Control Rules, 1962 has been as follows: "(4) Application for re-entry: An application by a tenant under sub-section (2) of section 17 or under sub-section (3) of section 18 for putting him in possession of the accommodation or part thereof shall be made within six months from the date on which the cause of action for re-entry arises and shall state the grounds on which such possession is claimed." 9. Certainly, this application for re-entry has been filed under section 23-G(3) and (4) of the Act and not under section 17(2) or 18(3) of the Act. Under this rule, no time limit has been prescribed specifically for applications to be filed under section 23-G(3) or (4) of the Act before the RCA. Thus, this limitation does not squarely apply to the present application. Otherwise also Harisingh (NA 1) had filed this application on 22.11.2000 when he had come to know about non-occupation of the house by Prashant Kumar Chourasia on dipawali in 2000 from Madansingh Yadav (A W 2). It is true that there had been no specific plea in the application filed by ;Harisingh (NA 1) about any date of such knowledge yet that is non determinative. In absence of any specific provision about any bar of limitation, residuary article 137 of the schedule of the Limitation Act could only be applied to the application. Certainly, under section 23-G (4) of the Act the landlord should have occupied the accommodation within two months of obtaining such possession and he cannot re-let or transfer possession of the accommodation within two years without permission of the RCA who could grant such permission for bona fide reasons. Certainly, in the present case no such permission was sought from the RCA neither any such permission was granted by the RCA. 10. It is true that situation of landlord Prashant Kumar Chourasia had been precarious and pathetic, he was employed at Bhopal and was residing there. He might have actually intended to live in the disputed house after his retirement. But he had fallen seriously ill and required medical treatment and support of his children who resided there at Bhopal. 10. It is true that situation of landlord Prashant Kumar Chourasia had been precarious and pathetic, he was employed at Bhopal and was residing there. He might have actually intended to live in the disputed house after his retirement. But he had fallen seriously ill and required medical treatment and support of his children who resided there at Bhopal. It is note worthy that later-on Prashant Kumar Chourasia succumbed to his illness. He might have changed his programme to shift to Indore. It is true that question of bona fide requirement always involves an element of future intention. Such a ground could be said to be false or fraudulent in case he had no intention to come to Indore at all from the very beginning. It may be that due to his serious illness about which he could not have known earlier, Prashant Kumar Chourasia might not have come to reside in the disputed house. In these facts certainly the landlord Prashant Kumar Chourasia had a valid excuse for not coming to Indore and occupy the suit house and he could be said to be entitled to change his intention or programme. However, such a theory or story had not been put by either the landlord Prashant Kumar Chourasia or by the purchasers/the applicants from him, nor any permission was sought for not occupying or for sale of the house from RCA who might have granted such permission in the peculiar facts and circumstances of the case and looking to the serious illness of the landlord Prashant Kumar Chourasia. Thus, neither the purchasers nor the landlord is entitled to reversal of the order of the RCA. 11. It is notworthy that Harisingh (NA 1) had filed his application for re-entry on 22.11.2000 much before the house was sold to the applicant on 24.7.2001. It is true that such sale on 24.7.2001 was effected after lapse of more than two years of getting vacant possession of the house by the landlord yet right of re-entry had already arisen to Harisingh (NA 1) when the landlord did not occupy the house within two months of getting vacant possession. The learned RCA has not believed that the applicant had no knowledge of pendency of this application for re-entry by Harisingh (NA 1) before purchase of the house. The learned RCA has not believed that the applicant had no knowledge of pendency of this application for re-entry by Harisingh (NA 1) before purchase of the house. Such a finding of fact cannot be said to be either perverse or arbitrary and cannot ~e interfered with in this revision. 12. Thus, there has been no force in this revision. The same is hereby dismissed. The impugned order passed by RCA is confirmed.