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2011 DIGILAW 1254 (MP)

Kamal Kumar Talreja v. Asha Bhatnagar

2011-11-03

J.K.MAHESHWARI

body2011
JUDGMENT : The applicants/tenants have filed this revision under Section 23-E of the M.P. Accommodation Control Act, 1961 (hereinafter to be referred to as "the Act") assailing the legality, propriety and correctness of the order passed by the Rent Controlling Authority (RCA), Bhopal allowing the application filed under Section 23-A of the Act directing ejectment of the tenant from the suit accommodation. 2. The facts which are not in dispute that the non-applicant is a widow and also a retired employee. Her husband died on 13-3-2004 and she attained the age of superannuation on 31-3-2006. The applicant No. 1 was the tenant of a shop ad-measuring 200 sq. ft. on ground floor situated in House No. 172, Green Park Colony, Berasiya Road, Bhopal. At the time of filing of the application seeking eviction the rate of rent was % 1500/- per month as per the Gregorian Calendar. 3. It is stated in the application by the non-applicant herein that she wants to start her own business of the "ready-made garments" in the said shop to which no other alternative reasonably suitable accommodation within the township of Bhopal is available is also stated that the applicant No. 1 has allowed applicant No. 2 as sub-tenant and parted with the possession to him illegally on rent. After giving a notice by filing this application prayer was made seeking eviction from the suit accommodation. 4. The defendants on receiving the notice of the case and after granting leave filed written statement stating that the tenancy in the suit shops is w.e.f. 1981 since the life-time of the husband of the non-applicant. After retirement of the non-applicant, the tenancy was renewed. At present, he is paying rent at the rate of Rs. 1500/- per month. It is said that the suit shop is not required bonafide as she is getting sufficient pension on attaining the age of superannuation, therefore, the requirement is not bonafide and the suit has been filed only to enhance the rent. It is further said that one of the shop has been sold by her after attaining the age of superannuation, therefore, also the requirement cannot be said to be genuine. 5. The RCA considering the -evidence of the non-applicant and her son Umendra Bhatnagar arrived at a conclusion that they are not having any other alternative reasonably suitable accommodation in the township of Bhopal. 5. The RCA considering the -evidence of the non-applicant and her son Umendra Bhatnagar arrived at a conclusion that they are not having any other alternative reasonably suitable accommodation in the township of Bhopal. The need of the plaintiff is bonafide to start the business of ready-made garments, therefore, eviction from the suit premises has been directed. 6. Shri Dinesh Upadhyay, learned Counsel appearing on behalf of the applicants contends that as per the statement of the plaintiff and her son it is apparent that one of the shops has been sold after attaining the age of superannuation by the non-applicant, therefore, the finding as recorded regarding bonafide need of the suit shop is perverse and is liable to be set aside. In support of such contention, reliance has been placed on a judgment of this Court in the case of Chainmal Vs. Rani Bai, reported in 2004 (4) MPLJ 354 , and it is urged that in the facts of the present case, the requirement of the plaintiff is not genuine, consequently, the finding of bonafide need and direction for ejectment from the suit shop is liable to be set aside. 7. On the other hand, Shri Hemant Kumar, learned Counsel appearing on behalf of the non-applicant contends that after appraisal of the evidence of the plaintiff and her son the finding regarding bonafide need as recorded by the RCA does not warrant interference by this Court as the scope of interference in revision on the finding of fact is meager and until and unless findings are perverse interference is not warranted. It is further contended that if the argument of the applicants is accepted even then mere sale of one of the shops does not show lack of bonafide requirement of the landlady. Such requirement is required to be seen on the date on which it accrues. Reliance has been placed on a judgment of this Court in the case of M.P. Dongre Vs. Kusumlata Shukla, reported in 2002 (1) MPLJ 40. In view of the foregoing, it is urged that the finding of fact as recorded by the RCA may be affirmed and the revision filed by the applicants may be dismissed. 8. Reliance has been placed on a judgment of this Court in the case of M.P. Dongre Vs. Kusumlata Shukla, reported in 2002 (1) MPLJ 40. In view of the foregoing, it is urged that the finding of fact as recorded by the RCA may be affirmed and the revision filed by the applicants may be dismissed. 8. After having heard learned Counsel appearing on behalf of the parties the only question remain for consideration is whether selling of one shop to someone in the year 2006 would mitigate the bonafide requirement of the landlady who filed application under Section 23-A of the Act being special category of the landlord and in such circumstances, the decree of eviction may be refused as her need is not bonafide ? 9. As per the statement of plaintiff-Smt. Asha Bhatnagar, it is apparent that she is a retired employee and wants to start her own business of ready-made garments in the suit shop. To start such business she is not having any other alternative reasonably suitable accommodation in the township of Bhopal. On being asked by the non-applicant, it is fairly admitted that one of the shops was sold by her about a year back. In the statement of her son Umendra Bhatnagar, aforesaid averment has been reiterated. In the statement of the defendant it is merely contended that because she has sold one shop sometime back, therefore, the need is not genuine. 10. In the said fact, the appreciation of the evidence is required to be made. While exercising revisional jurisdiction under Section 23-E of the Act, the power of the Court is larger than the revisional jurisdiction conferred under Section 115 of the Code of Civil Procedure, but such power may not be exercisable at par to the appellate jurisdiction. In the judgment of B. Johnson Vs. C.S. Naidu, reported in AIR 1986 MP 72 , this Court dealing with the words "legality, propriety or correctness" observed that the revisional power under Section 23-E of the Act is not restricted to the narrow limits of Section 115 of the Code of Civil Procedure, but it is not as wide alike to an appeal. Thus, the possible limits of power of revision is required to be kept in the mind and it can be exercised to prevent miscarriage of justice. In the case of Sarla Ahuja Vs. Thus, the possible limits of power of revision is required to be kept in the mind and it can be exercised to prevent miscarriage of justice. In the case of Sarla Ahuja Vs. United India Insurance Company, (1998) 8 SCC 119 , it has been observed by the Apex Court while interpreting Section 25-B (8) of the Delhi Rent Control Act, 1958 and observed that it is not permissible for the High Court while exercising revisional power to come to a different fact finding unless the finding arrived at by the RCA on the facts is so unreasonable that jio other Rent Controller might have reached on such a finding on the basis of the material available on record. It has been observed that in exercise of the revisional jurisdiction, a reappraisal of evidence can be made, but that should be for the limited purpose to ascertain whether the conclusion so arrived at by fact finding Court is wholly unreasonable. Again in the judgment of Rafat Ali Vs. Sugnibai, reported in (1999) 1 SCC 133 , the words "legality, regularity or propriety" used in Section 22 of the A.P. Building (Lease, Rent and Eviction) Control Act, 1960 have been interpreted wherein it has been held that revisional powers are not so restricted as in other enactments where the words are not so widely framed, nonetheless, they remain in the realm of supervisory jurisdiction. In the case of Vaneet Jain Vs. Jagjit Singh, AIR 2000 SC 2080 , it has been reiterated by Hon'ble Supreme Court that the High Court while exercising the revisional jurisdiction can reappraise the evidence only for a limited purpose for Ascertaining as to whether the conclusion arrived at by the fact finding Court is reasonable or not. In view of the above discussion, the legal position as crystallised by Hon'ble Apex Court, thus, it is to be seen by this Court whether the finding recorded by the RCA on the issue of bonafide need is reasonable or it is liable to be interfered with on the basis of the material so available being so unreasonable warrants interference. 11. After perusal of the statement of Smt. Asha Bhatnagar and Umendra Bhatnagar and also the defendant it is clear that no effective cross-examination on the issue of bonafide need has been made by the tenant. 11. After perusal of the statement of Smt. Asha Bhatnagar and Umendra Bhatnagar and also the defendant it is clear that no effective cross-examination on the issue of bonafide need has been made by the tenant. Simultaneously, it is true that the landlady admitted regarding sale of a shop, but merely admission of sale of shop would not negative bonafide need of the landlady. It is seen from the record that since 2010 the litigation was started with the tenant. One shop was sold as appears from the pleadings somewhere in the year 2006 immediately after retirement. Thus, what has transpired in the mind of the landlady after sale of one shop to start the business for the remaining life is a matter of concern to determine the issue of bonafide need in the facts of the present case when the notice was issued to vacate the suit accommodation, in the year 2010. It cannot be ignored that a landlady under special category may explore the possibility for remaining life keeping herself busy. In the said facts, if after retirement she sold one of the shops and after sometime to carry on her remaining life she wants to get vacated other suit shop to start the business expecting better life such testimony which remained in ocular cannot be disbelieved. Thus, the finding recorded by the Rent Controlling Authority is based on appreciation of the evidence. In the opinion of this Court, no different conclusion can be arrived at as reached by the RCA. Mere admission of selling of shop would not negate the bonafide need of the landlady. The judgment so relied upon by the applicants in the case of Chainmal (supra), having no application in the facts of the present case. It is to be observed that in the said case, landlady has entered into agreement to sell with the tenant himself and thereafter showing the bonafide need the suit was filed. However, considering the said material piece of evidence, this Court has negatived the bonafide need of the landlady while in the present case, facts are entirely different. In such circumstances, I am of the considered opinion that the finding as recorded by the RCA regarding bonafide need of the landlady and eviction of the tenant appears to be just and reasonable and do not warrant interference in exercise of the revisional jurisdiction by this Court. In such circumstances, I am of the considered opinion that the finding as recorded by the RCA regarding bonafide need of the landlady and eviction of the tenant appears to be just and reasonable and do not warrant interference in exercise of the revisional jurisdiction by this Court. Consequently, the revision filed by the applicants/tenants is hereby dismissed. 12. At this stage, learned Counsel appearing on behalf of the applicants made a request that because he is in occupation of the suit shop since 1981 some time to vacate the shop for restarting his business at other place may be allowed. Considering the facts and circumstances of the present case and giving a reasonable thought on the said contention and also looking to the fact that landlady falls under special category, this Court is of the view that time upto 31st March, 2012 would be sufficient to deliver vacant peaceful possession to the landlady by paying regular rent in this regard. It is made clear here that the tenants shall furnish an undertaking within one month from today before the RCA, Bhopal to the said effect. In the undertaking it be also specified that the said shop shall not be parted with the possession to any other person till delivery of the possession to the landlady. In the facts and circumstances of the case, parties are directed to bear their own costs.