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2011 DIGILAW 934 (MP)

Dilip Baghela v. Virendra Kumar Choubey

2011-08-16

A.K.SHRIVASTAVA

body2011
ORDER A.K. Shrivastava, J. 1. Order passed in this Civil Revision shall also govern disposal of connected Civil Revisions 523/2010, Satish Gupta vs. Virendra Kumar Choubey, C.R. No. 521/2010, Laxmi Kant vs. Virendra Kumar Choubey, C.R. No. 509/2010, Umashanker vs. Virendra Kumar Choubey, C.R. No. 510/2010, Baba Thakur vs. Virendra Kumar Choubey and C.R. No. 511/2010, Rajendra Kapoor vs. Virendra Kumar Choubey. 2. This revision application has been filed under section 23-E of the M. P. Accommodation Control Act, 1961 (in short "Act") by the tenant assailing the order of eviction dated 11-10-2010 passed by the Rent Controlling Authority, Jabalpur allowing the application filed by landlord under section 23-A of the Act and passing the order of eviction against tenant and the applicants of connected civil revisions. 3. The facts necessary for disposal of this revision application and connected revisions are that the respondent-landlord filed an application under section 23-A of the Act for eviction on the ground that suit accommodation which is given to the applicant-tenant is residential and because the same is needed by the plaintiff-landlord for his own residence, the same be got vacated. The respondent-landlord submitted the eviction application categorizing himself to be a specified landlord as defined under section 23-J(iv) of the said Act. In the application of eviction in paras 1 and 4, it has been pleaded that the plaintiff-landlord is a physically handicapped person and therefore categorizing himself to be a specified landlord he has filed application for eviction. In para 7 of the eviction application, he has pleaded that suit accommodation is required bona fide by him and hence it has been prayed that his application be allowed and the tenant who was arrayed as non-applicant before the Rent Controlling Authority and who is applicant in this civil revision application be evicted from the suit premises. 4. The tenant-applicant denied the averments made in the application of eviction by filing reply and in para 2 of the special plea it has been pleaded that landlord has filed eviction proceedings against 14 to 15 tenants which are pending. 4. The tenant-applicant denied the averments made in the application of eviction by filing reply and in para 2 of the special plea it has been pleaded that landlord has filed eviction proceedings against 14 to 15 tenants which are pending. In para 4 of the special plea, it has been pleaded that certain accommodations, the description whereof has been mentioned in that para are lying vacant and which are in possession of the landlord but if he is having any bona fide need, he could have started living in those accommodations and hence it has been prayed that eviction application be dismissed. 5. On bare perusal of the record of Rent Controlling Authority this Court finds that there is an order of Rent Controlling Authority dated 11-9-2009 in Case No. 72-A-90(7)/2005, Virendra Kumar Choubey vs. Satish Gupta in connected C.R. No. 523/2010 mentioning that all the cases were consolidated earlier and the deposition of the plaintiff was recorded in one case only. However, lateron the counsel of tenants were changed and therefore the cross-examination of the plaintiff-landlord has been recorded separately. 6. Learned Rent Controlling Authority allowed the application of eviction filed by the landlord and passed the decree of eviction. 7. In this manner this revision and connected revisions have been filed by the tenants assailing the order of learned Rent Controlling Authority. 8. Shri A. D. Mishra and Shri Manoj Sanghi, learned counsel appearing in bunch of these revision applications filed by the tenants, they have submitted that plaintiff has utterly failed to plead that what type of disability he is having. Further he has failed to plead that he is unable to move. Learned counsel submits that certificate of physical disability has also not been proved in accordance with law and it has been simply tagged and only a reference has been given by him in his testimony. Learned Counsel further submits that the landlord has utterly failed to plead that at-present where he is residing and whether the accommodation in which he is residing is of his own or he is tenant in that premises and further that how many family members are there in his family etc. Learned Counsel further submits that the landlord has utterly failed to plead that at-present where he is residing and whether the accommodation in which he is residing is of his own or he is tenant in that premises and further that how many family members are there in his family etc. Learned Counsel further submits that by concealing this very important fact in his pleadings that he is not having vacant residential accommodation of his own, straightway the application of eviction has been filed and therefore the need cannot be said to be bona fide need. Learned Counsel has invited my attention to the testimony of landlord wherein he has admitted that during the pendency of eviction application several residential accommodations have been got vacated but the eviction application has not been amended that despite availability of several residential accommodations the need of plaintiff is not satisfied and therefore eviction application be dismissed. In support of his contentions, learned counsel has placed heavy reliance on Single Bench decision of this Court Shri Karan Lal Kesharwani vs. The Sardar House and others, 2008 (2) MPLJ 365 : 2008(3) MPHT 168 . 9. On the other hand Shri Shailesh Tiwari, learned counsel appearing for landlord-respondent argued in support of the impugned order. 10. Having heard learned counsel for the parties, I am of the view that this civil revision as well as connected civil revisions deserves to be allowed. 11. On bare perusal of the eviction application, it is seen that what type of physical disablement the landlord is having has not been pleaded by him in his eviction application. Simply he has pleaded that he is a disabled person as envisaged under section 23-J (iv) of the Act. Further in para 4 of his application of eviction, it has been repeated that he is physically handicapped person. The term "physical handicapped" has not been defined under the Act and therefore from various dictionaries, the meaning of this term "physical handicapped" is to be seen. (1) 'Handicapped': (i) crippled or physically disabled; (ii) mentally deficient; (iii) (of a constant) marked by; being under, or having a handicap person; The Random House Dictionary of the English Language - (The Unabridged Edn.) (2) 'Handicap': A disadvantage that makes achievement unusually difficult esp. a physical disability that limits the capacity to work. (1) 'Handicapped': (i) crippled or physically disabled; (ii) mentally deficient; (iii) (of a constant) marked by; being under, or having a handicap person; The Random House Dictionary of the English Language - (The Unabridged Edn.) (2) 'Handicap': A disadvantage that makes achievement unusually difficult esp. a physical disability that limits the capacity to work. - Webster's Third New International Dictionary - (The Unabridged Edn.) (3) 'Handicap' : A person specifically children physically or mentally defective. - A supplement to the Oxford English Dictionary (Vol.12). 12. This Court in Krishan Kumar Baori vs. Ganga Prasad Singh, 1996 JLJ 386 has held that words "physically handicapped" occurring in section 23-J (iv) mean that a person claiming himself to be within the meaning of words 'physically handicapped' must be such a person suffering from a disease which may prevent him from following ordinary daily pursuits of his life. At this juncture, if testimony of landlord is x-rayed, this Court finds that he can ride the bicycle and can walk properly and thus, he is able to perform his normal life. Looking to this admission of landlord, I am of the view that learned Rent Controlling Authority has wrongly held that landlord is a "physically handicapped" person and is a specified landlord under section 23-J(iv) of the Act. 13. Apart from what I have held hereinabove, the certificate of physical disability has not been exhibited and has not been proved and simply it has been tagged although there is a reference in the statement of landlord that he has filed it. If there is no pleading of landlord that what type of physical disability he is having, merely tying some certificate without proving it in his evidence by the landlord, it cannot be said that the same is a proved document in terms of section 47 and 67 of the Evidence Act. The landlord has also not examined the doctor who has given the said certificate. According to me, the evidence of that doctor would have been an important and determining factor in order to hold that that the plaintiff is a handicapped person. Had landlord-plaintiff examined the said doctor, the tenants would have cross-examined him that what type of physical disability landlord is having. According to me, the evidence of that doctor would have been an important and determining factor in order to hold that that the plaintiff is a handicapped person. Had landlord-plaintiff examined the said doctor, the tenants would have cross-examined him that what type of physical disability landlord is having. Thus, the landlord is "physically handicapped" person in terms of the Act is not proved and therefore the eviction application filed under section 23-A of the Act before the Rent Controlling Authority by landlord categorizing himself to be a specified landlord under section 23-J(iv) was not maintainable. 14. The bona fide need of plaintiff has also not been proved. In the pleading nowhere it has been pleaded by the landlord in his application for eviction that the accommodation in which he is residing is of his own or he is living in a tenanted premises. If the said accommodation is of his own, how and in what manner it is insufficient for him to meet out his requirement. He has also not pleaded the name of the members of his family in order to establish that how much accommodation is needed to him. He has further failed to plead that he is not having any reasonably suitable vacant residential accommodation of his own in the township. According to me, in the absence of such type of pleadings it is difficult to infer that need of plaintiff is bona fide. The term "bona fide" has also not been defined in the Act, therefore, it is to be gathered from the facts and circumstances, pleadings and evidence placed on record. Since in section 23-A(a) of the Act itself it has been mentioned that landlord should possess no other reasonably suitable residential accommodation of his own, in absence of such a pleading in the application the need of plaintiff cannot be said to be a bona fide need. 15. For the reasons stated hereinabove, I am of the view that in most cryptic manner, learned Rent Controlling Authority has allowed the application of the landlord for eviction which is not only contrary to the provisions of Act but the findings of bona fide requirement as well as that the landlord is a physically handicapped person are contrary to evidence and pleadings placed on record. 16. Resultantly, this revision application and connected civil revisions are hereby allowed. 16. Resultantly, this revision application and connected civil revisions are hereby allowed. The impugned order of eviction in this revision as well as impugned in other revision applications is hereby set aside and all the applications of eviction filed by landlord-respondent against the applicant of this revision and applicants of other revisions stand dismissed. No costs.