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Madhya Pradesh High Court · body

2019 DIGILAW 554 (MP)

Patiram Sharma v. Satish Chandra Mangal

2019-07-30

SHEEL NAGU

body2019
JUDGMENT : Sheel Nagu, J. 1. Revisional powers of this Court under section 23E of M.P. Accommodation Control Act 1961 (for brevity 'the 1961 Act') are invoked to assail the final order of the Rent Controlling Authority dated 26/04/2019 passed in Case No. 01/2015 x 16 x 90/7 allowing an application preferred by the respondent/landlord under section 23A of the 1961 Act on the ground of landlord being retired servant of a Company (NTPC) owned and controlled by Central Government seeking eviction on the ground of bonafide need to run business in respect of shop admeasuring 8 ft. X 29 ft. situated on the ground floor occupied by petitioner as tenant since 01/08/1984 on rent @ Rs. 300/- p.m. subsequently enhanced to Rs. 400/- p.m. 2. Learned counsel for rival parties are heard. CONTENTION OF PETITIONER 3. Learned senior Advocate along with Shri Sanjeev Jain, Advocate in support of challenge to the impugned order submits that the respondent despite having failed to prove the foundational prerequisites for entitling, an order under Section 23A of the 1961 Act i.e. landlord is the owner of the accommodation and the landlord being a retired servant of a Company (NTPC) owned and controlled by Central Government, the RCA has exceeded its jurisdiction by directing eviction of petitioner tenant. 3.1. It is further submitted by learned counsel for the petitioner that no documentary proof was exhibited and admitted in evidence by the respondent/landlord to establish that he was owner of accommodation in question and that he was retired servant of a Company (NTPC) owned controlled by Central Government entitled to invoke Section 23A (b). 3.2. It is further submitted that the manner in which the Rent Controlling Authority allowed admission of Ex-P/3 identity card of respondent/landlord to prove his retired status is de hors the basic fundamentals of CPC and Evidence Act. Similarly, it is submitted that to establish the factum of respondent/landlord being owner of accommodation in question, Ex.-P/1 and Ex.-P/2, Will and Death Certificate respectively of the mother of respondent were admitted in evidence unlawfully. It is submitted that all the three documents which are shown to be Ex.-P/1, P/2 and P/3 has merely been placed on record by the respondent/landlord without the same being exhibited and admitted in evidence in terms of Order 13 Rule 4 CPC thereby rendering them inadmissible in evidence and therefore, worth discarding. It is submitted that all the three documents which are shown to be Ex.-P/1, P/2 and P/3 has merely been placed on record by the respondent/landlord without the same being exhibited and admitted in evidence in terms of Order 13 Rule 4 CPC thereby rendering them inadmissible in evidence and therefore, worth discarding. Yet, it is submitted the RCA solely relied upon Ex. P/1, P/2 & P/3 to pass the impugned order. 3.3. It is further submitted that RCA has adopted procedure foreign to CPC, Evidence Act and even to Court of Small Causes. 3.4. It is further submitted by learned counsel for the petitioner/tenant that findings recorded by RCA in respect of landlord being owner, the landlord being retired servant of Company/NTPC which is owned and control by Central Government and regarding bonafide need, have been recorded on presumptions and surmises in the absence of any proof and also by wrongly shifting the burden of proof upon the petitioner/tenant to disprove the case of the landlord without the landlord first proving his case. 3.5. It is lastly submitted by petitioner/tenant that application under section 151 of CPC of the petitioner/tenant filed to dissuade the RCA to admit Ex-P/1, Ex- P/2 and Ex-P/3 in evidence was rightly dismissed by order dated 30/03/2019 of the RCA which was never challenged by the respondent/landlord. CONTENTION OF RESPONDENT 4. Per contra, learned counsel for respondent/landlord laid great stress on the fact of RCA having failed to extend benefit of deeming clause to respondent/landlord under Section 23C of 1961 Act. In this regard, it is contended by learned counsel for the respondent/landlord that since no leave was obtained from RCA by the petitioner/tenant within expiry of 15 days from the date of service of notice of the application under Section 23A of the 1961 Act, the RCA wrongly allowed the petitioner/tenant to contest the case instead of passing order of eviction as per deeming Clause under section 23C(1) of 1961 Act. It is further submitted that power of attorney on behalf of tenant was filed before RCA on 21/12/2015 whereas the application for leave under Section 23C(1) to contest the application under Section 23A of the 1961 Act was filed by the petitioner/tenant as late as on 12/05/2016. It is further submitted that power of attorney on behalf of tenant was filed before RCA on 21/12/2015 whereas the application for leave under Section 23C(1) to contest the application under Section 23A of the 1961 Act was filed by the petitioner/tenant as late as on 12/05/2016. It is further submitted that despite the said application for leave having been filed after the statutory period of 15 days, the leave was wrongly granted by the RCA on 23/05/2016. It is further submitted by relying upon decision of apex Court in Parmjeet Kaur Bamba (Smt.) v. Smt. Jasbir Kaur Wadhwa reported in 2008 (1) JLJ 117 and in Tilakraj Sharma v. Shyamabai Tiwari reported in 1997 (1) JLJ 295 that the procedure prescribed by CPC is not strictly applicable to the proceedings for RCA under Chapter III-A of the 1961 Act. 4.1. It is further submitted by learned counsel for respondents/landlord that bare perusal of the testimony of respondent/landlord before RCA and the testimony of petitioner/tenant of admitting the factum of respondent/landlord having been retired and having received 60 Lakhs Rupees as provident fund, rightly persuaded the RCA to hold the respondent/landlord to be covered under the category of retired servant of company/NTPC owned and control by Central Government. Reliance is placed on decision of Girdhar v. Ladkibai reported in 1988 (1) MPWN 176 to contend that even photocopy of the documentary proof regarding respondent/landlord being retired employee of the Company suffices the requirement of law. It is further submitted that the name of respondent/landlord has since been mutated in the municipal record as the owner of the accommodation in question which further emboldens the contention of the landlord. CONSIDERATION 5. Before embarking upon the exercise of consideration of rival contentions, this Court would like to emphasize that the grievance of respondent/landlord of RCA not extending the benefit of deeming clause under Section 23C(1) of the 1961 Act is of no avail to the landlord since the respondent/landlord has failed to challenge the order of RCA dated 23/05/2016 granting leave to the petitioner/tenant under Section 23C(1) to contest the landlord's case under Section 23A of 1961 Act. 6. Before proceeding ahead, it would be apt to be reminded of the procedure to be followed by RCA in cases under Chapter III-A of 1961 Act. 6. Before proceeding ahead, it would be apt to be reminded of the procedure to be followed by RCA in cases under Chapter III-A of 1961 Act. Section 23D dealing with procedure is reproduced below for ready reference and convenience:- "23-D. Procedure to be followed by Rent Controlling Authority or grant of leave to tenant to contest.- (1) Where leave is granted to the tenant to contest the application, the Rent Controlling Authority shall commence the hearing of the application as early as practicable and decide the same, as far as may be, within six months of the order of granting of leave to the tenant to contest application. (2) The Rent Controlling Authority shall, while holding an enquiry in a proceedings to which this Chapter applies, follow as far as practicable, the practice and procedure of a Court of Small Cause Courts Act, 1887 (IX of 1887). The Rent Controlling Authority shall as far as possible, proceed with the hearing of the application from day to day. (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 23A is bona fide" 7. Bare perusal of sub-section (3) of Section 23D reveals that to achieve the object behind the chapter III-A which is special provision introduced with effect from 16/01/1985 making available expeditious proceedings for eviction to special category of persons defined under Section 23J, statutory presumption in favour of landlord is available. However, the same is rebuttable by the tenant on producing cogent and reliable evidence, in regard to bonafide need of the landlord under Section 23A of the 1961 Act. 8. Thus, the statutory presumptions as aforesaid is only in respect of the bonafide need enumerated in clause (a) or (b) of sub-section 23-A of the 1961 Act. However, this does not mean that the landlord seeking invocation of special provisions under Chapter III-A is exempted from proving the essential pre-requisites for earning a favourable order under Section 23A. 9. The basic pre-requisites for the special category of persons enumerated in Section 23 J to successfully invoke Section 23A(b) are as follows:- (1) The landlord belongs to one of the five categories of persons enumerated under Section 23J. (2) The landlord owns the accommodation. 9. The basic pre-requisites for the special category of persons enumerated in Section 23 J to successfully invoke Section 23A(b) are as follows:- (1) The landlord belongs to one of the five categories of persons enumerated under Section 23J. (2) The landlord owns the accommodation. (3) Bonafide requirement of doing business by the owner of accommodation in question. (4) The landlord has no other reasonable suitable alternative non-residential accommodation owned in his occupation within the municipal limits of city/town concerned. 9.1. Among the aforesaid four foundational prerequisites for invoking section 23A of 1961 Act, only in respect of one i.e. bonafide need, the statute presumes the need to be bona fide in favour of landlord but not in respect of the other three foundational pre-requisites. 10. Thus, in regard to factum of landlord being owner of accommodation in question and belonging to the category of persons enumerated under Section 23J is required to be established by the landlord in accordance with established law of procedure and evidence based on the anvil of preponderance of probability. When the landlord establishes the said three pre-requisites by producing oral or documentary proof in support thereof, then the onus to prove otherwise shifts upon the tenant. 11. For procedure to be adopted by RCA, Section 23D elicits that on grant of leave to the tenant under Section 23C(1) the RCA shall commence and conclude the hearing as expeditiously as possible preferably within six months from the date of order of grant of leave to the tenant to contest the application. The procedure to be adopted by RCA as per Section 23D(2) shall as far as practicable be that which is adopted by Court of Small Causes including recording of evidence as per procedure under the Provincial Small Cause Courts Act, 1887. To emphasize the need for expeditious conclusion of proceedings before RCA, it is stipulated in Section 23D(2) that as far as possible the proceedings be held on day to day basis. 12. The special nature of the proceedings before RCA and its importance is further reflected from the absence of any appellate forum against the order of RCA. To emphasize the need for expeditious conclusion of proceedings before RCA, it is stipulated in Section 23D(2) that as far as possible the proceedings be held on day to day basis. 12. The special nature of the proceedings before RCA and its importance is further reflected from the absence of any appellate forum against the order of RCA. Section 23E bars filing of appeal against order of RCA but confers High Court with revisional powers to test the legality, propriety, correctness of the order or the regularity of the proceedings by exercising the same power as vested with High Court under section 115 CPC. 13. This Court need not dwell into the interpretation of the provisions of chapter III-A of the Act-1961 since the same have been dealt with in detail by larger Bench of this Court in a slightly different context in the case of Paramjeet Kaur (Supra). The larger Bench of this Court in the said case of Paramjeet Kaur (supra) was deciding the question as to whether after grant of leave under Section 23C the defendant can be permitted to file written statement or the application for grant of leave already filed supported by an affidavit is sufficient and no further opportunity to file written statement is necessary? The relevant paragraphs No. 16, 17, 18, 19 & 20 are reproduced below for ready reference and convenience:- 16. It is apparent that provisions of Order 18 of the Code for recording evidence are not applicable to the proceedings under the Small Cause Courts Act. Therefore, Rent Controlling Authority is required to record memorandum of evidence as under the provisions of Order 18 Rule 13 of the Code. It is not necessary for the authority to take down or dictate or record the evidence of the witnesses at length; but as the examination of each witness proceeds, shall make in writing, or dictate directly on the typewriter, or cause to be mechanically recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the Judge or otherwise authenticated, and shall form part of the record. Rent Controlling Authority is not required to record evidence either under Order 18 Rule 4 or Rule 5 of the Code. 17. Apex court in the case of Dhannalal v. Kalawatibai and Ors. Rent Controlling Authority is not required to record evidence either under Order 18 Rule 4 or Rule 5 of the Code. 17. Apex court in the case of Dhannalal v. Kalawatibai and Ors. [ 2003 (1) JLJ 85 : (2002) 6 SCC 16 ], has held in para 9 of the judgment as under: "9. Broadly speaking, the main features of Chapter III-A are that it provides a summary procedure for the hearing of applications on the lines similar to those contained in Order 37 CPC. The tenant cannot contest the prayer for eviction from accommodation unless leave to defend is sought for by moving an application within the prescribed period of time and allowed. Default in appearance or refusal of leave results in the statement made by the landlord in the application for eviction being deemed to have been admitted by the tenant obliging the Rent Controlling Authority to pass an order of eviction. Where leave is granted to the tenant to contest the application, the Rent Controlling Authority shall hold an enquiry consistently with the practice and procedure of a Court of Small Causes. The requirement of the landlord is presumed to be bona fide unless the contrary is proved, that is to say, the burden of proof is placed on the tenant to rebut the case of the landlord contrary to the ordinary procedure in a civil court where the burden of proof lies on the landlord. As against as order of eviction passed by the RCA, a revision lies to the High Court and the remedy of appeal is excluded. Thus, considering the scheme of the Act it is apparent that amendment is brought for providing speedy remedy to specified categories of landlords defined in Section 23J of the Act following summary procedure. 18. Section 23D of the Act provides that after grant of leave to the tenant to contest the application, the authority shall commence the hearing of the application as early as practicable and decide the same, as far as may be, within six months of the order of granting of leave to the tenant to contest the application. The mandate of legislature is clear and unambiguous. The authority is required to commence the hearing immediately after grant of leave. Filing of written statement is not the mandate of the legislature. The mandate of legislature is clear and unambiguous. The authority is required to commence the hearing immediately after grant of leave. Filing of written statement is not the mandate of the legislature. Application is required to be decided on the grounds on which leave is granted to the tenant. Authority is required to decide the application on day to day basis, therefore, grant of time to file written statement under Order 8 Rule 1 of the Code will frustrate the mandate as tenant will be at liberty to seek adjournments on the grounds narrated by him and the adjournments may go beyond six months. Under Section 23D of the Act the procedure to be followed as far as practicable in a Court of Small Causes. Thus, if some provision is in conflict with the provisions of Section 23D of the Act then the procedure provided under Section 23 D of the Act should be followed. Thus, permitting time to file written statement will frustrate the legislative intent. The intention of legislature is to provide expeditious decision of eviction proceedings filed by the landlord on the ground of bona fide need. On bare reading of Section 23D of the Act it is clear that there is no provision for filing of written statement as Rent Controlling Authority is required to decide the application within six months which indicates the intention of legislature for decision on the application on the grounds on which leave to defend is granted and there is no requirement for filing written statement. 19. Keeping the golden principle of the Interpretation of Statute and legislative intent in mind, language of Section 23D of the Act is clear and unambiguous. Rent Controlling Authority is bound to commence the hearing of the application as early as practicable and decide the same immediately after grant of leave to contest the application within a period of six months as far as may be. The legislature has nowhere provided for lengthy procedure after the grant of leave. When leave to defend is granted to the tenant on all or some grounds raised by the defendant, the Rent Controlling Authority is required to proceed with the application for eviction filed by the landlord and shall record evidence of the parties as there is no requirement of filing written statement by the defendant. When leave to defend is granted to the tenant on all or some grounds raised by the defendant, the Rent Controlling Authority is required to proceed with the application for eviction filed by the landlord and shall record evidence of the parties as there is no requirement of filing written statement by the defendant. Under Section 23D(3) there is a presumption of bonafide need in favour of the landlord. The presumption is rebuttable, therefore, after grant of leave to defend, Rent Controlling Authority shall proceed to decide the bonafide need of the landlord and grounds on which leave to defend is granted. He is not required to decide anything else except the bonafide need. Thus, on plain reading of Section 23(D) the language is clear and simple and there is no provision for filing written statement by the tenant after leave to defend is granted to him. The grounds on which tenant is permitted to defend is to be considered and decided by the Rent Controlling Authority under the Scheme of Chapter III-A and he is not required to decide any other dispute. 20. Thus, the question referred is answered as under: "Under the scheme of Chapter III-A and the procedure laid down under Section 23D of the Act there is no provision for granting time to the tenant to file written statement after grant of leave to defend. The Rent Controlling Authority is required to proceed with the application for eviction and decide the application after considering the grounds on which leave to defend is granted to the tenant after recording evidence as provided under Order 18 Rule 13 of the Code." 14. From the above discussion, it is evident as day light that the proceedings before RCA under Chapter III-A are summary in nature where the application of CPC is limited to the extent provided under Section 23C. The procedure to be adopted is akin to the procedure adopted by Provincial Small Cause Courts under Order 50 of CPC which inter-alia excludes the application of Rule 5 to 12 of Order 18 of CPC which relates to "hearing of the suit and examination of witnesses". The procedure to be adopted is akin to the procedure adopted by Provincial Small Cause Courts under Order 50 of CPC which inter-alia excludes the application of Rule 5 to 12 of Order 18 of CPC which relates to "hearing of the suit and examination of witnesses". Thus, the concept of cross-examination is non-existent in the proceeding before RCA under chapter III-A. The RCA is not required to take down or record the evidence of witness at length but is merely required to record a memorandum of the substance of what the witness deposes as per Order 18 Rule 13 of CPC. 14.1. In the instant case, the leave was granted to the petitioner/tenant to contest the case of landlord before the RCA, by order dated 23-05-2016. As the said order remained unchallenged by the landlord, it necessarily follows that the landlord was required to prove by producing reliable evidence, the foundational facts of landlord being owner and belonging to the category of landlord's enumerated in Section 23J and the bonafide need by such evidence which passes the test of preponderance of probability. 14.2. The first fact which was required to be established by the landlord was that he belongs to the category of landlord's enumerated in Section 23J. For this purpose, the landlord deposed that he retired w.e.f. 30-11-2009 from the post of AGM from NTPC which is a company owned/controlled by the Central Government. This is evident from paragraph-A of the affidavit of respondent/landlord under Order 18 Rule 4 of CPC. This oral statement on oath was though not supported by any documentary evidence but the petitioner/tenant in his deposition in para-5 has admitted the status of landlord being a retired person who has received provident fund. Thus, by virtue of this admission, the first foundational fact of landlord/respondent belonging to special category of landlord's enumerated in Section 23 J(ii) stands satisfied and thus, the finding of the RCA in this regard is unimpeachable. 14.3. Next, the landlord was required to prove that he is the owner. The pleadings in application under Section 23A disclose that the landlord averred that he is the owner of the accommodation, which fact was denied by the petitioner/tenant, thereby giving rise to an issue, burden of proving of which lay squarely of the landlord. 14.3. Next, the landlord was required to prove that he is the owner. The pleadings in application under Section 23A disclose that the landlord averred that he is the owner of the accommodation, which fact was denied by the petitioner/tenant, thereby giving rise to an issue, burden of proving of which lay squarely of the landlord. It is seen from the record that the landlord during pendency of proceedings before the RCA amended his application incorporating additional pleadings in support of his claim of being owner. Consequently, the reply/written statement filed by defendant/petitioner was also amended and the claim of being owner made by landlord was emphatically denied. Pertinently, the will on the basis of which ownership was claimed was not produced by the landlord in original at the time of his examination-in-chief. 14.4. The record reveals that the Will was marked as Ex. P-1 by the RCA which is evident from reading of order dated 02-03-2019 rejecting the application of tenant/petitioner u/O 13 Rule 3 of CPC, seeking rejection of inadmissible documents (The will, identity card regarding landlord being retired servant of the company and death certificate of mother of landlord) 14.5. By this order dated 02-03-2019, the RCA has categorically recorded a finding that during examination/cross-examination of landlord, no photocopy of any document was exhibited. 14.6. It appears from the record that the Will in original was produced alongwith written arguments and is also shown to be marked as Ex. P1, though there is nothing on record to indicate that the said will in original was admitted in evidence by producing the same during examination-in-chief or cross-examination of landlord. Thus, the factum of the landlord being the owner was not established in accordance with law. 15. Whereas, as regards the third foundational fact of bonafide requirement, after having gone through the record, the material evidence produced by the rival parties and the findings recorded by the RCA, this Court is of the considered view that the factum of bonafide requirement of landlord for non-residential purpose, was proved. 16. In the conspectus of above analysis, the only foundational fact which the landlord failed to establish in accordance with the procedure established by law was that he was the owner of accommodation on the basis of Will. 17. 16. In the conspectus of above analysis, the only foundational fact which the landlord failed to establish in accordance with the procedure established by law was that he was the owner of accommodation on the basis of Will. 17. Thus, the impugned finding of RCA to the extent of holding the respondent/landlord to be the owner of the accommodation in question is perverse. 18. Consequently, the present revision is allowed to the following extent:- 1. The impugned order dated 02-03-2019 passed by the RCA stands quashed to the extent it holds the respondent landlord to be the owner of the accommodation in question. 2. The proceeding before the RCA shall recommence from the stage of examination-in-chief of landlord only on the issue as to whether the landlord is the owner or not? 3. It is made clear that no other issue would be raised by either of the parties. 4. The proceedings so recommenced by the RCA shall be completed as expeditiously as possible preferably within a period of two months from the date of receipt of the copy of this order, by conducting day to day proceedings, for which the rival parties are directed to appear before the RCA on 06/08/2019. 5. It is further made clear that the factum of the landlord/respondent belonging to the special category of landlord's enumerated in Section 23J(ii) of 1961 Act and the need of the landlord being bonafide shall be treated to be proved. 6. RCA is further directed to impose heavy cost on either of the parties which tends to delay the proceedings by adopting dilatory tactics. 19. With the aforesaid directions, the present petition stands disposed of. 20. The Principal Registrar is directed to forthwith return the record of RCA so that the proceedings as directed by this Court can recommence and conclude.