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Madhya Pradesh High Court · body

2009 DIGILAW 1302 (MP)

Prabhudayal Goyanka v. Dr. Ravish Chandra Pandey

2009-11-24

N.K.MODY

body2009
Judgment ( 1. ) Being aggrieved by the order dated 5/10/2007 passed by Rent Controlling Authority Ujjain (which shall be referred as "RCA") in case No. 15-A/90 )7- (A)/95-96 whereby an order of eviction was passed against the petitioner, the present petition has been filed. ( 2. ) Short facts of the case are that predecessor-in-title of the respondent/Dr.Ravish Chandra Pandey filed a petition for eviction under section 23 (A) of M.R Accommodation Control Act (which shall be referred hereinafter as "Act") on 29.3.1990 alleging that the deceased/respondent is the owner of the house bearing house No. 108, Nazar Ali Marg, Phutta Darwaja in front of Singh Bhawani Mandir, Ujjain. It was alleged that in the said accommodation petitioner is residing as tenant @ Rs. 50/- per month. It was alleged that deceased is a retired government employee and is landlord of the category defined under section 23- J of the Act. It was alleged that the suit accommodation which is residential is required by the deceased bonafidely for his need and the need of his family. It was prayed that order of eviction be passed against the petitioner. The petition was contested by the petitioner by moving an application for leave to defend. The leave was granted thereafter, written statement was filed. During pendency of the petition deceased Dr. Ravish Chandra Pandey died and his legal representatives were brought on record. After framing of issue and recording of evidence, RCA passed an order of eviction against which the present petition has been filed. ( 3. ) Mr. V.K. Jain, learned counsel for the petitioner argued at length and submits that the impugned order passed by learned RCA is illegal and deserves to be set-aside. It is submitted that the suit was filed by deceased Dr. Ravish Chandra Pandey on 19/3/1990 for his need. It is submitted that deceased/Dr. Ravish Chandra Pandey was resident of Raipur while the suit property is situated at Ujjain. It is submitted that in the suit an application for leave to defend was filed by the petitioner and leave was gratned by learned RCA, thereafter, written statement was filed by the petitioner on 3/9/1990. It is submitted that on 10.3.1992 an application for amendment was filed by deceased/Dr. Ravish Chandra Pandey. Along with amendment application, an application for impleading the parties under Order 1 Rule 10 CPC was also filed on 10/3/1992. It is submitted that on 10.3.1992 an application for amendment was filed by deceased/Dr. Ravish Chandra Pandey. Along with amendment application, an application for impleading the parties under Order 1 Rule 10 CPC was also filed on 10/3/1992. Application filed by the deceased respondent was allowed vide order 25/7/1992 and consequential amendment was made by the petitioner on 15/9/1992. Thereafter, evidence of respondent was recorded on 18/1/1993 and on 2/9/1995 the petition filed by the respondent was dismissed in default. Thereafter an application for restoration was filed on 30/9/1995. Upon the said application the proceedings were restored. It is submitted that after recording of the statement of deceased Dr. Ravish Chandra Pandey which was recorded on 18/1/1993, evidence of petitioner was recorded on 16.7.2000. It is submitted that thereafter the petitioner moved an application for amendment on 17/7/2000 which was allowed on 21/4/2001 and thereafter on 19/9/2001 deceased/Dr. Ravish Chandra Pandey died. It is submitted that mother of the deceased/Dr. Ravish Chandra Pandey namely Savitribai also died for whose requirement the petition was filed and legal representatives of the deceased/Dr. Ravish Chandra Pandey were brought on record vide application dated 26.12.2001 which was allowed vide order dated 8.7.2002. Thereafter, right to adduce the evidence of the petitioner was closed by learned RCA on 18.11.2002. It is submitted that after closing the right to adduce the evidence of petitiner an application for amendment was filed by the respondents, who are legal representative of deceased/Dr. Ravish Chandra Pandey on 17.5.2006 and plaint was amended in compliance of the order whereby the application was allowed. It is submitted that thereafter on 14.2.2007 petitioner moved an application under Order 6 Rule 17 CPC and prayer was made for amendment, which was allowed vide order dated 4.5.2007. Thereafter, after hearing final arguments on 25.9.2007 the eviction order was passed against the petitioner on 5.10.2007 against which the present petition is filed. Learned counsel for the petitioner submits that the impugned order passed by the learned trial Court is illegal, incorrect and deserves to be set aside, It is submitted that in fact original petition was filed by the respondent for the need of mother of deceased/Dr. Ravish Chandra Pandey and upon death of mother of deceased/Dr. Ravish Chandra Pandey which took place in the year 2001, petition was substantially amended vide application dated 17.5.2006 which was allowed on 30/1/2006. Ravish Chandra Pandey and upon death of mother of deceased/Dr. Ravish Chandra Pandey which took place in the year 2001, petition was substantially amended vide application dated 17.5.2006 which was allowed on 30/1/2006. It is submitted that after the consequential amendment was made by the petitioner by moving application filed under Order 6 Rule 17 CPC which was allowed on 4.5.2007. It is submitted that after framing of additional issues and after hearing the parties petition filed by the respondent was allowed and eviction order was passed. It is submitted that since the application filed by the petitioner for leave to defend was allowed, therefore, it was incumbent upon the learned RCA to hold the inquiry. After holding inquiry on the basis of pleadings of parties learned RCA has allowed the application which is illegal, incorrect and deserves to be set-aside. Learned counsel placed reliance on a decision in the matter of Jain Transport Co. v. Sakinabai, AIR 1990 Madhya Pradesh 106 wherein while taking into consideration the provision of section 23,23-D ofAct, this Court has observed that landlord has to first prove various ingredients except bonafied nature of requirement, casting on tenant burden of adducing evidence in rebuttal is illegal. ( 4. ) Learned counsel for the petitioner submits that originally the petition was for the need of the mother of deceased/Dr. Ravish Chandra Pandey for which evidence was adduced by deceased/Dr. Ravish Chandra Pandey by examining himself for the need of mother. After her death and also after the death of deceased/Dr. Ravish Chandra Pandey, the application was amended by legal representatives of the deceased/Dr. Ravish Chandra Pandey and need was pleaded for themselves. It is submitted that before the application for amendment filed by the respondent right of petitioner to adduce evidence was closed, therefore, there was no occasion for the petitioner to adduce the evidence. It is submitted that since the eviction petition was allowed, therefore, the amended petition was required to be proved by respondent by adducing the evidence. It is submitted that since there is no evidence, therefore, the impugned order is illegal. ( 5. ) Mr. A.K. Sethi, learned senior counsel for the respondent argued at length and submits that revision petition is being filed against the eviction order under section 23E of the Act according to which no appeal shall lie from any order passed by the RCA under this chapter. ( 5. ) Mr. A.K. Sethi, learned senior counsel for the respondent argued at length and submits that revision petition is being filed against the eviction order under section 23E of the Act according to which no appeal shall lie from any order passed by the RCA under this chapter. It is submitted that as per sub-section (2) of section 23E, of the Act this Court can examine the impugned order for the purpose of satisfying itself as to the legality, proprietary or correctness of any order, thus, jurisdiction of this Court is limited. It is submitted that petition can be filed for eviction under Chapter IIIA by the landlord of a special category as defined under section 23 J of the Act and presumption has to be drawn in favour of landlord under section 23D of the Act. It is submitted that as per sub-section (2) of section 23D of the Act RCA has to hold an enquiry in a proceedings to which this Chapter applies, by following the practice and procedure of a Court of Small Causes including the recording of evidene under the Small cause Act, 1887 and as per sub-section (3) of section 23D of Act, it has to be presumed that unless the contrary is proved, the requirement by the landlord with reference to clause (a) or clause (b), as the case maybe of section 23 A is bonafide. It is submitted that it is wrong to say that eviction petition was filed by the respondent for the need of mother of deceased/Dr. Ravish Chandra Pandey. It is submitted that petition filed by the respondent for eviction for the need of himself and the family. It is submitted that though the respondent was not required to lead any evidence but respondent himself came in evidence to prove the need. It is submitted that petition was filed in the year 1990 and in a summary proceeding after lapse of a period of 17 years the case could have been concluded in the year 2007. It is submitted that the need of landlord has to be seen on the date of suit, for which reliance is placed on a decision of Honble apex Court in the matter of Shakuntala Bai v. Narayan Das 2004 (2) Vidhi Bhaswar 117= AIR 2004 SC 3484 . It is submitted that the need of landlord has to be seen on the date of suit, for which reliance is placed on a decision of Honble apex Court in the matter of Shakuntala Bai v. Narayan Das 2004 (2) Vidhi Bhaswar 117= AIR 2004 SC 3484 . Reliance is also placed in the matter of Rajendra Kumar Jain v. Laxmi Bai 2006 (4) MPLJ 115 wherein decree passed in favour of landlord cannot be set aside merely because of death of original landlord. It is submitted that the petition filed by the petitioner be dismissed. ( 6. ) From perusal of the record it is evident that the eviction petition was filed by deceased Dr. Ravish Chandra Pandey, predecessor-in-title of the respondents on 29.3.90. In the said petition filed under section 23 Aof the Act it was alleged that the deceased respondent requires the suit accommodation bonafidely for himself and his family. By amendment in para 17 it was stated by the deceased respondent that Kanhaiyalal Pandey father of the respondent has died on 30.1.1947. Smt. Savitridevi, mother of the respondent, who was also included as respondent was aged 84 years and is unable to live above without her son and the daughter-in-law. It was further alleged in the petition that Smt. Savitridevi also needs the suit accommodation for herself and the family bonafidely. ( 7. ) The statement of Dr. Ravish Chandra Pandey was recorded on 18.1.93 in which he has stated that he was working as the Law Officer and has retired from Jagdalpur on 31.3.89. He has further stated that he requires the suit accommodation for himself, his mother and the wife. He has also stated that his mother lives with him. He has also stated that he is domicile of Ujjain. He has completed his secondary education from Ujjain. Respondent No. 1 Smt. Pramila Pandey is the wife of the deceased, Dr. Ravish Chandra Pandey. It is true that an application for amendment was filed by the respondent on 17.5.2006, which was allowed vide order dated 30.12.2006 and thereafter no further evidence was adduced by the respondents to prove the allegations made in the petition. However, sufficient averments are on record, which relates to the bonafide need of the family of the deceased Dr. Ravish Chandra Pandey. By the statement also, which was recorded long back in the year 1993 Dr. However, sufficient averments are on record, which relates to the bonafide need of the family of the deceased Dr. Ravish Chandra Pandey. By the statement also, which was recorded long back in the year 1993 Dr. Ravish Chandra Pandey has proved the allegations made in the petition regarding bonafide requirement, which was the need of the family and which includes respondent No. 1. who is the widow. In the matter of Shakuntalabai (supra) the Honble apex Court has observed that what is to be seen is whether on the date of filing of the suit one of the grounds for eviction was made out. It was further clarified that the principle that the need of the landlord must exist till the decree for eviction is passed by the last Court and attains finality, can even otherwise have no application here in view of the express language used in the section. "As the Preamble shows the Madhya Pradesh Accommodation Control Act, 1961 has been enacted for expeditious trial of eviction cases on the ground of bona fide requirement of landlords and generally to regulate and control eviction of tenants. If the subsequent event like the death of the landlord is to be taken note of at every stage till the decree attains finality, there will be no end to litigation. By the time a second appeal gets decided by the High Court, generally a long period elapses and on such a principle if during this period the landlord who instituted the proceedings dies, the suit will have to be dismissed without going into merits. The same thing may happen in a fresh suit filed by the heirs and it may become an unending process. Taking into consideration the subsequent events may at times, lead to rendering the whole proceedings taken infructuous and colossal waste of public time. There is no warrant for interpreting a Rent Control legislation in such a manner the basic object of which is to save harassment of tenants from unscrupulous landlords. The object is not to deprive the owners of their property for all times to come." ( 8. ) In the present case it cannot be ignored that the petition for eviction was filed in the year 1990. After filing of the petition Smt. Savitridevi mother of the deceased Dr. Ravish Chandra Pandey expired. Thereafter Dr. Ravish Chandra Pandey has also expired. ) In the present case it cannot be ignored that the petition for eviction was filed in the year 1990. After filing of the petition Smt. Savitridevi mother of the deceased Dr. Ravish Chandra Pandey expired. Thereafter Dr. Ravish Chandra Pandey has also expired. However, fortunately Smt. Pramila Pandey, who happens to be the wife of Dr. Ravish Chandra Pandey of whose need also has been alleged in the petition and proved by the deceased respondent in his statement in the year 1993 is surviving. Undoubtedly, Ujjain is the holyplace and sufficient evidence is on record to show that family of the respondent is the domicile of Ujjain. Therefore, at no stage of injunction it can be said that the need, which has been made out by the respondent in their petition is malafide. This Court is of the view that no illegality has been committed by the learned trial Court in passing the impugned order. In view of this petition filed by the petitioner is dismissed. No order as to costs. However, to save the petitioners right of eviction, six weeks time is granted to evict the suit accommodation provided the petitioner furnishes an undertaking before the learned trial Court within a period of four weeks to the effect that petitioner shall hand over the vacant possession of the accommodation on or before 20.5.2010 and shall pay the rent regularly..