Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 517 (MP)

Kailash Agrawal v. Hemibai Nandwani

2013-04-16

Anil Sharma

body2013
ORDER 1. This revision has been filed under section 23-E of the MP Accommodation Control Act against the order dated 20.10.2011 passed by learned Rent Controlling Authority, district Gwalior in Case No. 07/05-06/90-7/RENT whereby the application filed by respondent/applicant has been allowed and order of eviction has been passed against petitioner/non-applicant under section 23A of the MP Accommodation Control Act (in short referred to as Accommodation Control Act). 2. The brief facts of the case are that the respondent/applicant has filed an application for eviction under section 23A of the MP Accommodation Control Act against petitioner/non-applicant alleging that in the shop bearing No. 102, 103 situated at Agrasen Complex, Darjioli, Lashkar, Gwalior owned by respondent/applicant and his daughter Kanchanbai. petitioner/non-applicant is tenant at the rate of Rs. 4,500/- per month. The non-applicant earlier became tenant of Smt. Nirmala Devi Gangwani from whom the respondent/applicant and her daughter Kanchanbai purchased Both the shops by sale deed dated 25.2.2005. The tenant has not paid any rent inspite of notice of attornment given by the new landlord and in his reply to the notice, he has wrongly mentioned that he is tenant at the rate of Rs. 90/- per month. The applicant Hemibai has filed the application on the ground of being widow under section 23-J of the MP Accommodation Control Act as her husband has died on 27/05/06. The applicant has filed an application for eviction on the ground that she need the suit premises bonafidely for business of her son Ashok Nandwani for which purpose she has no other accommodation in the Municipal area of Gwalior, MP. 3. Petitioner/non-applicant in his reply admitted that he is tenant of the suit premises since the time of Nirmaladevi Gangwani and he has no intimation regarding the suit property being sold by Nirmaladevi to the applicant. Since he has received notice from the applicant he has sent rent of Rs. 360/- from March 2005 to June 2005 under protest which has been received by the applicant. He has denied the fact that suit premises is banafidely needed for business to her son and it is further alleged that in the godown, no business can be established. It has further alleged that application has been filed with an intention to increase the rent. He has denied the fact that suit premises is banafidely needed for business to her son and it is further alleged that in the godown, no business can be established. It has further alleged that application has been filed with an intention to increase the rent. Earlier, Nirmaladevi has also filed suit for eviction and by compromising the matter outside the Court she has received one lac and got the application dismissed in non-prosecution. By receiving rent of Rs. 45/- per godown, the sale deed has been executed by Suresh Chand Wadhwani as power of attorney holder and has been purchased by Ashok Kumar in the name of respondent/applicant. Nirmaladevi has received one lac rupees as security which has not been returned or adjusted in the rent. Co-owner Kanchandevi has not been made party in the application. 4. Learned Rent Controlling Authority has allowed the application by holding that petitioner is tenant of respondent at the rate of Rs. 4,500/- per month and suit premises is requires bonafidely for business of readymade garment by son of the petitioner and petitioner landlord falls in the category mentioned in section 23-J of the MP Accommodation Control Act. 5. Being aggrieved by the impugned order, petitioner has filed this revision petition on the ground that the Rent Controlling Authority has granted decree of arrears of rent against the petitioner for which he has no jurisdiction. Petitioner did not accept the title of Smt. Hemibai Nandwani because her son Ashok Nandwani has executed the sale deed in favour of his mother and no specific issue regarding this pleading has been framed by the trial Court. The applicant Hemibai Nandwani has admitted in cross examination that her son Ashok Nandwani purchased the suit premises and he paid the consideration for the same. It is further admitted that to purchase suit premises herself and Ashok Nandwani obtained the loan from the bank. 6. The main question involved in the revision petition is that whether learned trial Court is justified in passing the impugned order by holding that there is a relationship of landlord and tenant between the applicant and non-applicant. 7. It is further admitted that to purchase suit premises herself and Ashok Nandwani obtained the loan from the bank. 6. The main question involved in the revision petition is that whether learned trial Court is justified in passing the impugned order by holding that there is a relationship of landlord and tenant between the applicant and non-applicant. 7. Learned lower Court has held that there is a relationship of landlord and tenant on the ground that after receiving the notice Exhibit P7, the petitioner/non-applicant has sent the rent to Hemibai by Money Order and based on the finding on the judgment of Hon’ble apex Court passed in the matter of Anar Devi v. Nathuram, 1994 JLJ 486 , in which it has been held that the tenant cannot challenge title of his landlord who put up the tenant in possession even title of the subsequent landlord cannot be challenged when tenant once acknowledges him as his landlord. 8. Learned counsel for the petitioner has cited judgment of this Court passed in the matter of Shankar Dayal and others v. Pragi Lal and others, 1997 (2) Vidhi Bhasvar 80, in which it has been held the Court cannot act on assumptions or surmises, it can also not attribute its knowledge of facts in deciding a case. 9. Learned counsel for the petitioner has drawn attention towards the fact that the respondent/landlord has admitted in her evidence that her son Ashok Nandwani purchased the suit premises and paid the consideration for the same. Ashok Nandwani has also obtained letters from the bank. He has drawn attention towards the statement of Smt. Hemibai Nandwani, who in her cross examination has admitted that she is an unemployed and has no source of income. In paragraph 8 of cross examination, she has admitted that the shop was registered in her name because her son Ashok and Rajendra wanted to open shop and by purchasing the house in her name, the shop could have been vacated earlier. She further admitted that Nirmaladevi has sold the shop to her son-in-law Suresh. She has further admitted in cross examination that Nirmaladevi has filed suit for eviction against the petitioner tenant. She has further admitted that the affidavit on the basis of which she is giving statement has been prepared by her sons. She has only signed on the affidavit. She cannot read. 10. She has further admitted in cross examination that Nirmaladevi has filed suit for eviction against the petitioner tenant. She has further admitted that the affidavit on the basis of which she is giving statement has been prepared by her sons. She has only signed on the affidavit. She cannot read. 10. Learned counsel for the petitioner has also drawn attention towards the statement of Ashok Nandwani (PW2), who in cross examination has admitted that Nirmaladevi filed a suit for eviction. He has further admitted that the registered sale deed of the suit premises by which he has purchased the suit house from Nirmaladevi has been executed by his brother-in-law Suresh Kumar, power of attorney holder. 11. Petitioner Kailash Agrawal (DW1), on the other hand stated that he has sent the rent amount to Smt. Hemidevi under protest. He has further stated that the earlier suit filed by Nirmaladevi was presented by Ashok Kumar as power of attorney holder of Nirmaladevi and Ashok Kumar is son of respondent applicant Smt. Hemidevi. The copy of the suit (petition) filed by Nirmaladevi is Exhibit D6. 12. On perusal of Exhibit D6, it is clear that Smt. Nirmaladevi has filed an application under section 23 of MP Accommodation Control Act, therefore, power of attorney holder Suresh who is son-in-law of respondent landlord Smt. Hemibai and hemibai has purchased the suit house along with her daughter Kanchan, who is wife of Suresh Kumar the power of attorney holder of Nirmaladevi. The suit filed by Nirmaladevi was dismissed in non-prosecution and, thereafter, sale deed has been executed in favour of Hemibai and her daughter kanchan and again suit for eviction has been filed on the ground of bonafide need. Before allowing the application under section 23-A of the Accommodation Control Act, The Rent Controlling Authority has to consider the bonafides of the petitioner after ascertaining the bonafide need. Earlier petition filed by Nirmaladevi was dismissed in non-prosecution and her Mukthiyar Suresh Kumar executed sale deed in favour of his mother-in-law and wife and again filed a suit for eviction under section 23-A of the accommodation Control Act and Smt. Hemibai although an illiterate lady has admitted that suit premises was purchased in her name with the aim that it will be vacated earlier if it is purchased in her name. Therefore, from the very beginning i.e. from the registration of sale deed the bonafides of the petitioner were absent and it is with a view to get benefit of provision of section 23-A of the Accommodation trial Court. The house has been purchased in the name of Hemibai. Learned Rent Controlling Authority has failed to consider the fact that the suit house was used for godown and it has not been considered as to whether godown can be used as shop. Therefore, in the absence of bonafide need and further the suit premises which is godown for opening shop is not sustainable in the absence of bonafide intention behind the need. The learned Rent Controlling Authority is not justified in passing the impugned order. Further, the order passed by learned Rent Controlling Authority regarding arrears of Rent and rate of rent is also without jurisdiction. 13. Therefore, learned Rent Controlling Authority is not justified in passing the impugned judgment, therefore, petition is allowed. The impugned order passed by the learned Rent Controlling Authority is hereby set-aside. The rent deposited by the petitioner in compliance of the impugned order in excess of agreed rent with Nirmaladevi Rs. 90/- per month be refunded to the petitioner.