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Madhya Pradesh High Court · body

2009 DIGILAW 1211 (MP)

Ratnaprabha Nazan v. Kalyansingh

2009-10-22

PRAKASH SHRIVASTAVA

body2009
ORDER 1. This revision petition has been filed under section 23-E of the M.P. Accommodation Control Act, 1961 ("Act" hereafter) challenging the order dated 10.2.2005 passed by the Rent Controlling Authority, Indore rejecting the petitioner's application for eviction under section 23-A of the Act. 2. The brief facts of the case are that the applicant who is co-owner of House No.105, Tilak Nagar Extension, Indore had filed the application for eviction under section 23-A of the Act on the ground that she being a widow is covered under the special category of landlord and is in bona fide need of the suit premises for her own residence. In the eviction application she disclosed that she is owner of the suit premises having 1/5th share. The respondent by filing the reply to the application had opposed the eviction application and the learned Rent Controlling Authority-by the order dated 10.2.2005 rejected the application by holding that the applicant is not covered under the special category of landlord; the bona fide need is not proved; she had alternate accommodation available; and without imp-leading the other co-owners application for eviction could not have been filed. 3. Learned counsel appearing for the applicant challenging the order of the Rent Control Authority submitted that the Rent Controlling Authority committed an error while appreciating the correct position on fact and law in respect of each of the ground on which the application is rejected. He submitted that on the basis of the pleadings and the evidence it is established that the applicant is a widow covered by the special category of landlord. The bona fide need is established, there is no alternate accommodation available, the finding recorded by Rent Controlling Authority are perverse, and that as per settled position in law it is not necessary to imp-lead other co-owners and one co-owner alone is competent to bring the suit for eviction. 4. The respondent-tenant was served notice in the, present revision petition but he did not appear in the matter. He was also issued SPC intimating him about the date of hearing of revision petition but he has chosen not to appear in the case. Therefore, this Court vide order dated 4.8.2009 appointed Shri Y.K. Jain, Advocate as Amicus Curie to assist the Court on behalf of the respondent. 5. He was also issued SPC intimating him about the date of hearing of revision petition but he has chosen not to appear in the case. Therefore, this Court vide order dated 4.8.2009 appointed Shri Y.K. Jain, Advocate as Amicus Curie to assist the Court on behalf of the respondent. 5. Shri Y.K. Jain learned Amicus Curie appearing for the respondent tenant submitted that the order of the Rent Controlling Authority does not suffer from any error. The applicant failed to prove that she is a widow and she suppressed the fact that alternate accommodation was available therefore, the eviction application has rightly been rejected. He further submitted that the applicant suppressed the fact of passing of the preliminary decree in the partition suit and once the preliminary decree of partition is passed, suit for eviction could not have been filed. 6. I have heard the learned counsel for the. parties and perused the record. The present revision petition has been filed under section 23-E of the Act. Against the order of the Rent Controlling Authority no appeal has been provided and only remedy available is to file the revision petition under section 23-E of the Act. The scope and power of revision under section 23-E of the Act is wider than the revisionary power under section 115 of the Code of Civil Procedure and is comparatively narrow than the power of the appellate Court. The order of the Rent Controlling Authority needs to be examined in the light of the scope of interference under section 23-E of the Act. 7. The first ground of rejection stated by the Rent Controlling Authority in the impugned order is that the applicant did not produce the death certificate of her husband, therefore, it is not proved that she is a widow but while holding so the Rent Controlling Authority did not look into the undisputed position on record. The applicant in paragraph 1 of the application for eviction stated that her husband Dilip Kumar died on 23.11.1981. The respondent in his written statement admitted this fact. Therefore, it was undisputed that the applicant is a widow. At no stage of the proceedings respondent took the stand that the applicant is not a widow. The respondent in his deposition also admitted that the husband of the applicant died in 1981. The respondent in his written statement admitted this fact. Therefore, it was undisputed that the applicant is a widow. At no stage of the proceedings respondent took the stand that the applicant is not a widow. The respondent in his deposition also admitted that the husband of the applicant died in 1981. Therefore, the finding of the Rent Controlling Authority that the applicant failed to establish that she is a widow is a perverse finding having been arrived at without looking at the pleadings and evidence of the parties. Under section 23-J(iii) of the Act, a widow is covered within the meaning of the special category of landlord, therefore, application for eviction under section 23-A of the Act at the instance of the applicant was maintainable. 8. The Rent Controlling Authority has non suited the applicant also on the ground that the applicant was not in bona fide need of the suit premises since she was residing in House No.29/4, North Rajmohalla, Indore prior to the death of her husband in 1981. After the marriage of her daughter, she was the only member who required the accommodation and she failed to prove that the existing accommodation is not sufficient. While recording this finding, the Rent Controlling Authority has neither looked into the pleading nor evidence adduced by the parties on this issue. The applicant in her eviction application stated that she is presently residing in House No.29/4, North Rajmohalla, Indore along with her 3 brothers, their wives and children therefore, there is shortage of space in the present accommodation. The statement of applicant is supported by the statement of PWI Smt. Ratnapranbha Nazan clearly who also stated that there is shortage of residential space in House No.29/4, North Rajmohalla, Indore where she is residing along with her brothers and family members. 9. It is also worth noting that under section 23-D(3) of the Act, there is a presumption that the requirement of the landlord under section 23-A of the Act, clause (a) or clause (b), as the case may be, is bona fide. Therefore, the presumption of bona fide requirement was in favour of the applicant and onus was on the respondent to rebut this presumption which the respondent failed to do. Thus, it is found that the applicant was successful in establishing that her requirement was bona fide. 10. Therefore, the presumption of bona fide requirement was in favour of the applicant and onus was on the respondent to rebut this presumption which the respondent failed to do. Thus, it is found that the applicant was successful in establishing that her requirement was bona fide. 10. The Rent Controlling Authority also held that the applicant has alternate accommodation i.e. house constructed on Plot No.180, Usha Nagar, Indore, available to her. Section 23-A(a) of the Act requires that the landlord should have "no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned". There is no material on record to show that Plot No.180 is in possession of the petitioner and it is reasonably suitable or available for residence to the petitioner. Ex. P-l is the judgment and decree dated 18.11.1998 passed by the Court of Vth Civil Judge, Class II, Indore in Civil Suit No. 175-A/95 which shows that Plot No.180 has been sold by one of the co-owner Pradeep to other persons. In the judgment and decree I dated 18.11.1998 passed in Civil Suit No. 175-A/95 the applicant has beenheld entitled to 1/5th share in this plot and this judgment also shows that she is not in occupation of this plot or house if any constructed thereon. Therefore, it cannot be held that this plot or house is available to her as an alternate accommodation. 11. The Rent Controlling Authority has also held that the applicant has House No.29/4, North Rajmohalla available for her living but has failed to appreciate that the is paucity of space in this house. The Rent Control Authority did not look into the pleadings and the statement of the witnesses more particularly the statement of PW1 which shows that though the applicant is residing in this house with her 3 brothers and their family members but there is no adequate space for her living in that house. 12. In this regard the judgment of the Supreme Court in the matter of Prativa Devi (Smt.) v. T. V. Krishnan, reported in (1996)5 SCC 353 , is worth noting wherein the Supreme Court has taken the view that the landlord is the best Judge of his residential requirement and whether an alternative accommodation is actually available would depend upon the landlord's right to such accommodation. House No.29/4, North Rajmohalla, Indore is of a joint ownership, which does not have adequate space, therefore, it cannot be held to be a reasonably suitable accommodation available for residence. 13. The Supreme Court in the matter of Sarla Ahuja v. United India Insurance Co. Ltd., reported in AIR 1999 SC 100 , while considering the similar issue held that the cordial relationship between land lady and her daughter-in-law and that she is residing in her present building are not relevant in judging the bona fide claim of the landlord, otherwise it would appear that landlord can think of residing in his or her own residential building only when cracks develop in the relationship between him and his other kith and kin. Thus, the Rent Controlling Authority in the present case is not right in stating that the objection of the brothers of the applicant in respect of the residence of the applicant in House No.29/4, North Rajmohalla, Indore is not on rcord, therefore, that house is available as alternate accommodation. 14. Thus, I find that the Rent Controlling Authority recorded a perverse finding that alternate accommodation is available to the applicant without considering the evidence on record and without looking into the requirement of section 23-A(a) of the Act. 15. The Rent Controlling Authority has also taken the view that since in respect of the suit property preliminary decree or pm1ition has been passed on 18.11.1998 in which it has been held that the applicant has 1/5th share but the final decree has not been passed therefore, suit for eviction cannot continue. Learned counsel appearing for the applicant has also made a statement at the bar that till now the final decree of partition has not been passed. Once it is held that the applicant has 1/5th share in the suit accommodation and it is found that the applicant is a widow lady and has no other reasonably suitable place to live, then the application for eviction cannot be rejected on the ground that only preliminary decree of partition has been passed and not the final decree. 16. The Rent Controlling Authority is also not correct in holding that other co-owners were necessary party in the suit because the property was let out by another co-owner Pradeep. 16. The Rent Controlling Authority is also not correct in holding that other co-owners were necessary party in the suit because the property was let out by another co-owner Pradeep. It is worth noting that in the present case none of the co-owner has intervened in the matter or objected to the application for eviction filed by the applicant. This Court in the matter of Kandhi Lai v. Abhilash Kumar, reported in 2oo7(III) MPWN 118= 2007(4) MPHT 199 , has held that in the absence of opposition by the co-owner, his consent for eviction proceedings may be presumed and one of the co-owner has a right to sue the defendant for eviction. This Court in the matter of Raj Kumar @ Raju v. Rameshchand and others, reported in 2000(II) MPACJ 261, has held that one of the co-landlord can bring an action for eviction and there is no necessity for bringing another co-landlord in action. Thus, the Rent Controlling Authority was not right in rejecting the application on the ground that other co-owners have not been imp-leaded as party. 17. It is also worth noting that the applicant is a widow lady aged about 50 years who is living with the family of her brothers and she needs a separate accommodation for her own residence. The respondent-tenant is in possession of the suit premises for last more than 25 years. The conduct of the respondent-tenant before this Court in not appearing in the revision inspite of service of notice and service of SPC for final hearing is also worth noting. The counsel for the applicant has also submitted that the respondent has not paid rent since January, 1999 and there is no denial of this fact before this Court. 18. In view of the aforesaid analysis, I find that the Rent Controlling Authority committed an· error in recording a perverse finding without looking into the evidence and rejecting the applicant's application for eviction." 19. In the result .the revision petition is accordingly allowed. The impugned order dated 10.2.2005 passed by the Rent Controlling Authority, Indore is set aside and the application for eviction filed by the applicant under section 23- A of the Act is allowed and the respondent is directed to hand over peaceful vacant possession of House No.105, Tilak Nagar Extension, Indore to the applicant within a period of two months from the date of this order. No order as to costs·. 20. Before concluding, it would be appropriate to express gratitude to Shri Y.K. Jain, Advocate who on the request of this Court has rendered his valuable assistance.