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2010 DIGILAW 52 (CHH)

JAWAHAR LAL NAGDEV v. SATTI BAI

2010-02-16

N.K.AGARWAL

body2010
ORDER 1. This is a revision by the tenant under Section 23-E of the C.G. Accommodation Control Act, 1961 (briefly, "the Act") against the order of eviction passed by the Rent Controlling Authority on the application of Smt. Sarti Bai, widow under Section 23-A of the Act. 2. As per memo of revision, undisputed facts are that the applicant is a tenant of late Sabhag Chandra i.e. husband of the non-applicant, of the suit premises since last 26 years and after death of Sabhag Chandra, the non-applicant is his landlady. The premises was let out for non-residential purpose and is being used as such by the non-applicant. Monthly rent of the suit premises is Rs. 600/-. The non- applicant is a widow and comes in the category of landlord given in Section 23-J of the Act. 3. Case of the landlady is that the accommodation was let out for nonresidential purpose to the tenant by her husband late Sabhag Chand and after his death, entire property has been partitioned between legal representatives and the suit premises fell in her share, also lease deed was executed by Raipur Development Authority in her favour with the consent of her sons, and since then, she is the landlady of tenant. The tenant is in arrears of rent for 20 months. She further pleaded that she has no means of livelihood after the death of her husband, therefore, she requires bona fide the suit premises for business purposes which she will do with the help of her grand-son Ajay Kumar Khemani, son of deceased Dilip Kumar Khemani. 4. Case of the tenant is that there is no relationship of landlord and tenant between the parties. He is not in arrears of rent as alleged. The suit premises is not bona fidely required by the landlady. She has no experience of business, she is an old aged illiterate lady. She is properly maintained by her sons. Specific nature of business has not been pleaded. The whole story is concocted for the purpose of eviction of the non-applicant from the suit premises. This fact is also denied that the applicant does not have any alternative accommodation to start business. 5. She is properly maintained by her sons. Specific nature of business has not been pleaded. The whole story is concocted for the purpose of eviction of the non-applicant from the suit premises. This fact is also denied that the applicant does not have any alternative accommodation to start business. 5. The Rent Controlling Authority after appreciation of documentary and oral evidence adduced by both the parties has held that there is a relationship of landlord and tenant between the parties; she requires it bona fide for her business purpose and passed the order of eviction. 6. During the course of hearing of this revision, learned counsel for the applicant Shri Kingar has argued that exact nature of business which she wants to start has not been shown; she is an old lady; does not have any experience of business, other reasonably suitable alternative accommodation for the purpose of business is available with her, she is being well maintained by her sons. She has not examined the grand-son to show her need. The need pleaded is ungenuine. The application has been filed with an ulterior motive to enhance the rate of rent. She wants to sell the house, and, therefore, learned Rent Controlling Authority has fallen in error in passing the order impugned. For this, reliance has been placed by Shri Kingarupon the following case laws:- i. Gonga Bai Vs. Dhanraj-1. 1. 1990(II)MPWN Note 92 ii. Jernail Singh Vs. Kanhaiyalal-2. 2. AIR 1986 MP 53 iii. Shanti Bai Vs. Namomal Sindh-3. 3. 1996 (2) Vidhi Bhasvar 113 iv. Ashok Kumar Vs. Kishan Singh-4. 4. 2001 (II) MPJR 269 v. Vikas Kumar Onkar Prasad Gupta Vs. Radhamal Hiramal Sindhi-5. 5. 1998(2)MPLR 139 7. Per contra, Shri Shailendra Dubey, learned counsel for the landlady would submit that the eviction order passed by the R. C.A. is based on cogent and clinching evidence, does not call for interference of this Court in exercise of its revisional jurisdiction. In his support, he has cited the following case laws :- i. Vinod Kumar Jain Vs. Smt. Pushpalata Paruthi-6. 6. 2002(1) CGLJ 10 ii. Gopaldas Vs. Kasturi Devi Begani-7. 7. 2002(1)CGLJ 86 iii. Smt. Devi Bai and another Vs. Smt. Rambai-8. 8. 2002(2)CGLJ268 8. I have heard learned counsel for the parties, perused the order impugned and the record of the Rent Controlling Authority. 9. Smt. Pushpalata Paruthi-6. 6. 2002(1) CGLJ 10 ii. Gopaldas Vs. Kasturi Devi Begani-7. 7. 2002(1)CGLJ 86 iii. Smt. Devi Bai and another Vs. Smt. Rambai-8. 8. 2002(2)CGLJ268 8. I have heard learned counsel for the parties, perused the order impugned and the record of the Rent Controlling Authority. 9. The question which falls for consideration of this Court is whether the findings of fact arrived at by the R.C.A. in the present case are perverse or wholly unreasonable? 10. Before dealing with the points mentioned above, it must be clearly stated that the scope of interference by this court in the findings recorded by the Rent Controlling Authority is limited. The revisional power conferred by Section 23-E of the Act is larger than the revisional jurisdiction under Section 115 of the C.P. C. but lesser than appellate power. Indication is that an attempt should be made to keep as nearly as possible to the limits of power of revision under Section 115 of C.P. C. exceeding the same only to the extent necessary for preventing miscarriage of justice. The finding of fact arrived at by the R.C.A. regarding the bona fide requirement of the landlady can be disturbed in revision if it is perverse and not simply on the ground that another view is possible on re-appreciation of the evidence. 11. The finding of fact arrived at by the R.C.A. regarding the bona fide requirement of the landlady can be disturbed in revision if it is perverse and not simply on the ground that another view is possible on re-appreciation of the evidence. 11. In order to appreciate the rival contentions raised by the counsel for the parties, it would be appropriate to reproduce the relevant provisions contained in Section 23-A(b) and Section 23-D(3) of the Act which read as under: "Section 23-A. Special provision for eviction of tenant on ground of bona fide requirement.-Notwithstanding anything contained in any other law for the time being in force or contract to the contrary, a landlord may submit an application, signed and verified in a manner provided in rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908) as if it were a plaint to the Rent Controlling Authority on one or more of the following grounds for an order directing the tenant to put the landlord in possession of the accommodation, namely :- (a) xxx xxx (b) that the accommodation let for non-residential purposes is required 'bona fide' by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters, if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned: Provided that where a person who is a landlord has acquired any accommodation or any interest therein by transfer, no application for eviction of tenant of such accommodation shall be maintainable at the instance of such person unless a period of one year has elapsed from the date of such acquisition. Section 23-D. Procedure to be followed by Rent Controlling Authority or grant of leave to tenant to contest.- (1) xxx xxx" (2) xxx xxx (3) 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 " 12. From a perusal of the aforesaid provisions of the Act, it is clear that once it is prima facie found as a fact that the requirement of the person as contemplated by law exists, it shall be presumed unless contrary is proved that the requirement of the landlady with reference to Clause A or Clause B as the case may be of Section 23-A is bona fide. It has been argued by Shri Kinger that the exact nature of the business has not been pleaded by her, therefore, the need pleaded is not genuine. The above question has already been answered by the Supreme Court in case of Rajkumar Khaitan and others Vs. Bibi Zubaida Khatun and another-9 wherein in para 4 of the judgment, it has been observed as under:- 9. (1997) 11 SCC 411 "4. It is clear from the averments made in the above-quoted paragraphs that the plaintiffs asserted that there were no other means of livelihood with them and as such they wanted to set up their own business in the premises in dispute. The High Court, however, came to the conclusion that apart from the above-quoted pleadings it was necessary to plead the nature of the business which the appellant-plaintiffs wanted to start in the premises. We are of the view that the High Court fell into patent error. It was not necessary for the appellant-landlords to indicate the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated nobody could bind the landlords to start the same business in the premises after it was vacated." 13. The other argument advanced by Shri Kingar that the landlady being old aged person and has no experience of running any business and, therefore, her need is not genuine is also sans merit. It is well settled that a person can start business and she need not have prior experience in this regard. If an old landlady in order to maintain herself after death of her husband wants to start business with the help of her grand-son, then her need cannot be said to be ungenuine. It is trite law that landlady I landlord is the best judgment of her /his requirement and has complete freedom in this matter. If an old landlady in order to maintain herself after death of her husband wants to start business with the help of her grand-son, then her need cannot be said to be ungenuine. It is trite law that landlady I landlord is the best judgment of her /his requirement and has complete freedom in this matter. So far as the other points which have been raised by Shri Kingar are concerned, there is no material placed on record by the tenant so as to show that the landlady has other reasonably suitable alternative accommodation in the city of Raipur for business purposes. The need pleaded and established by the landlady is her own need. It is not the need of her grand son. The premises is required for her own need to earn her livelihood With the help and aid of her grand-son and, therefore, non-examination of her grand-son by the landlady is not fatal to the need pleaded by her. 14. Shri Kingar by referring the statement of tenant would contend that increased rate of rent has been demanded by the landlady which suggests that her need is not bona fide. After going through the entire evidence, it would reveal that the dispute regarding enhancement in rate of rent was between the husband of the landlady and the tenant. The landlady after death of her husband never demanded any such increased rent. Even as per the tenant, he never paid rent directly to the landlady so the question of demanding rent at enhanced rate does not arise. 15. So far as the contention raised by Shri Kingar that the landlady has not proved her bona fide need is concerned, it also has no substance. It is not in dispute that initial burden has been discharged by the landlady by pleading her case specifically in terms of Section 23-A(b) of the Act and also by examining herself on that. On the contrary, the tenant has failed to rebut the presumption of law arose in favour of the landlady in terms of sub-section 3 of Section 23-D of the Act. The fmding of fact arrived at by the R. C.A. regarding bona fide requirement of landlady is based on evidence and cannot be said to be perverse or wholly unreasonable. 16. The fmding of fact arrived at by the R. C.A. regarding bona fide requirement of landlady is based on evidence and cannot be said to be perverse or wholly unreasonable. 16. So far as the case laws cited by Shri Kingar in cases of Gonga Bail (supra), Jernail Singh-2 (supra), Shanti Bai-3 (supra), Ashok Kumar-4 (supra) and Vikas Kumar Onkar Prasad Gupta-5 (supra) under Section 12(1)(f) of the M.P. Accommodation Control Act are concerned, there is no quarrel with the proposition of law that appropriate pleadings of bona fide requirement are necessary and mere desire of landlord is not sufficient and the landlady should also plead the fact of non-availability of alternative accommodation but the same are of no help to him as it has been held earlier that the respondent/landlady has succeeded in establishing her requirement in terms of Section 23-A(b) of the Act and the applicant failed to discharge his burden. 17. For the foregoing, I do not find any substance in the revision. The revision fails and is dismissed. Revision Dismissed.