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2022 DIGILAW 358 (MP)

PRAFFUL KUMAR JAIN v. SUSHILA DEVI

2022-03-03

SATISH KUMAR SHARMA

body2022
ORDER/JUDGMENT : – Shri K. N. Gupta, learned Senior Counsel with Ms. Ayushi Pophli, learned counsel for the petitioner. Shri N. K. Gupta, learned Senior Counsel with Shri S. D. Singh, learned counsel for the respondent. 2. This Civil Revision under section 23-E of the Madhya Pradesh Accommodation Control Act has been filed against the order dated 23-7-2021 passed by the Rent Controlling Authority, Guna (M. P.) in Case No. 2A-90/2016-17, whereby the eviction application filed by the respondent (applicant) has been allowed and the petitioner (non-applicant) has been directed to hand over the possession of rented shop to the respondent/applicant. 3. The brief facts leading to this petition are that the respondent/applicant filed an application under section 23-A(b) of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as “Act”) before the Rent Controlling Authority, Guna (M. P.) seeking eviction of the shop described in Para No. 1 of the application which was let out to the non-applicant by rent note dated 7-2-1986 for her bona fide requirement to start business of ladies garments. Non-applicant in his reply denied the landlord tenant relationship between the parties and pleaded that the applicant is not landlord of the shop. Pushpendra Kumar Jain son of the applicant is landlord who executed the rent note and received the rent regularly. The applicant is an old lady who is not capable of doing any business. Her requirement is not bona fide. Otherwise also, two shops adjacent to the disputed shop are lying vacant which are equally suitable for the proposed business. After recording of the evidence of both the sides learned Rent Controlling Authority allowed the application and passed the impugned order. Being aggrieved the same, this petition has been filed by the non-applicant/tenant. 4. Heard learned counsel for both the sides and perused the material available on record. 5. Shri K. N. Gupta, learned Senior Counsel with Ms. Ayushi Pophli, for the applicant submits that it is well settled legal position that eviction order under the Act can not be passed if the landlord tenant relationship is not established between the parties. In this case, the applicant has not let out the shop to the non-applicant. It is her son-Pushpendra Kumar Jain who let out the shop to the non-applicant. He has not only executed the rent note but also regularly receiving the rent from the non-applicant. In this case, the applicant has not let out the shop to the non-applicant. It is her son-Pushpendra Kumar Jain who let out the shop to the non-applicant. He has not only executed the rent note but also regularly receiving the rent from the non-applicant. He filed a suit for eviction for shop adjacent to the disputed shop in the capacity of landlord of whole building. The applicant has stated that she is owner of the property on the basis of a Will executed in her favour by her husband but no such Will has been produced in evidence. On the other hand, non-applicant has produced ample documentary evidence in the form of public documents which clearly indicates that the applicant is not the landlord of disputed shop and this application has been filed in mala fide manner by misusing special provision of the Act. It is also well established from the evidence of the applicant herself that in this very house two other shops are lying vacant for use of the applicant and her family. One other adjacent shop was also got vacated from the other tenant which has been sold by the son of the applicant. Learned Rent Controlling Authority has passed the impugned order in arbitrary manner without application of mind which deserves to be quashed and set-aside. He has placed reliance upon the following judgments : – 1. Dhania Bai vs. Ramkhilawan, 1982 MPWN 472 , 2. Life Insurance Corporation of India vs. India Automobiles and Company and ors., (1990) 4 SCC 286 , 3. Kanaklata Das and ors. vs. Naba Kumar Das and ors., (2018) 2 SCC 352 , 4. Dr. Ranbir Singh vs. Asharfi Lal, (1995) 6 SCC 580 , 5. Tribhuvan Shankar vs. Amrutlal, (2014) 2 SCC 788 , 6. Durga Prasad Verma vs. Municipal Corporation and anr., 2002(1) MPJR SN 26, 7. Avinash Agarwal vs. Smt. Reena Agarwal, 2005(4) M.P.L.J. 386 , 8. Sitabai wd/o Megraj Ji Joshi and ors. vs. Kamla Bai wd/o Late Swami Dayal Ji Shukla, 2004(2) M.P.L.J. 554 . 6. Shri N. K. Gupta, learned Senior Counsel with Shri S. D. Singh, for the respondent/applicant has contended that as per rent note itself the shop was let out by the firm Ratanchandra Pushpendra Kumar Jain. Out of two partners, one can sign the rent note on behalf of the firm. 6. Shri N. K. Gupta, learned Senior Counsel with Shri S. D. Singh, for the respondent/applicant has contended that as per rent note itself the shop was let out by the firm Ratanchandra Pushpendra Kumar Jain. Out of two partners, one can sign the rent note on behalf of the firm. After death of Ratanchandra Jain, his widow i.e. Sushila Devi has become owner of the disputed shop along with her son-Pushpendra Kumar Jain. It is well settled legal position that in case of two or more landlords/owners, one co-owner can bring the eviction suit/application. The applicant-Sushila Devi being widow of the landlord-Ratanchandra Jain has rightly filed the eviction application for her bona fide requirement to start business. She is very well covered in the definition of landlord as per section 23-J of Chapter III-A of the Act. There is a presumption in the favour of the landlord that she has bona fide requirement of rented shop. Non-applicant has not succeeded in rebutting the presumption. Thus, learned Rent Controlling Authority has rightly passed the impugned order. The petition deserves to be dismissed. He has placed reliance upon the following judgments : – 1. Hameeda Begum vs. Champa Bai Jam and ors., 2004(1) M.P.L.J. 50 , 2. Kanaklata Das and ors. vs. Naba Kumar Das and ors., (2018) 2 SCC 352 , 3. Girish Kumar Shrivastava vs. Punjab National Bank, Satna, 2003(2) M.P.L.J. 481 , 4. Surtyomal vs. Smt. Chanda Bai, 2004(3) M.P.L.J. 438 , 5. Pandhari Nath s/o Ramchandra Rao vs. Rukmini Bai w/o Chhote Lal and ors., 2006(1) M.P.L.J. 338 , 6. Raghvendra Swami Mutt vs. Uttaradai Mutt, (2016) 11 SCC 235 , 810. 7. Heard. Considered. 8. In view of the above rival submissions, the core question in this matter arises as to whether landlord-tenant relationship is established between the parties or not? 9. Raghvendra Swami Mutt vs. Uttaradai Mutt, (2016) 11 SCC 235 , 810. 7. Heard. Considered. 8. In view of the above rival submissions, the core question in this matter arises as to whether landlord-tenant relationship is established between the parties or not? 9. The term “Landlord” is defined under section 2(b) of the Act which reads as under : – “landlord” means a person, who, for the time being, is receiving, or is entitled to receive, the rent of any accommodation, whether on his own account or on account of or on behalf of or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the accommodation were let to a tenant and includes every person not being a tenant who from time to time derives title under a landlord” 10. The applicant-Sushila Devi, in her statement, claims to be landlord of the disputed shop on the basis of some Will executed in her favour by her deceased husband-Ratanchandra Jain who was stated to be co-owner of the disputed shop but no such Will has been produced by her. She has also stated that she received rent of the disputed shop from the non-applicant but no counter slips of the said receipts have been produced. In such a situation, presumption goes against the applicant that neither the said Will was executed in her favour nor she received rent from non-applicant/tenant. Thus, she does not fulfill the requirement as envisaged in the definition of landlord. 11. Besides above, Pushpendra Kumar Jain the son of the applicant, in his on oath statements, has admitted that he filed a civil suit for eviction of shop adjacent to the disputed shop, wherein it has been categorically pleaded that he is the owner of the building in which the disputed shop exists. Thus, by admission of the son of the applicant, which is supported by documentary evidence, the claim of ownership of the applicant over the said property is negated. 12. The non-applicant has also filed certificate issued by the concerned Municipal Council, Guna (M. P.) to the effect that in Ward No. 4 no immovable property exists in the name of the applicant-Sushila Devi. 13. 12. The non-applicant has also filed certificate issued by the concerned Municipal Council, Guna (M. P.) to the effect that in Ward No. 4 no immovable property exists in the name of the applicant-Sushila Devi. 13. Learned Senior Counsel for the respondent has contended that it is not on record that disputed shop is situated in the Ward No. 4, therefore, this certificate does not help the non-applicant. 14. The above certificate of Municipal Council, Guna has been filed by the non-applicant to show that the applicant is not owner of the suit property. If as per applicant the suit property does not exist in Ward No. 4 then she could have filed the certificate from the same Municipal Council to prove her ownership over the suit property but she has failed to do so. Therefore, the applicant’s ownership over the shop is not established. 15. It is contended on behalf of the applicant that the suit property belongs to the firm of Ratanchandra Jain and Pushpendra Kumar Jain and one partner is competent to sign the rent note on behalf of the firm. 16. It cannot be disputed that one of the partners can sign the rent note on behalf of the firm but in this case, non-applicant categorically denied the landlord-tenant relationship between the parties. In such a situation, the applicant was obliged to produce some documentary evidence to establish the ownership of the said firm over the rented shop but no such evidence has been produced. 17. However, for the sake of arguments, if it is taken to be correct that Ratanchandra Jain was co-owner of the property but as discussed above, the applicant could not establish her ownership over the property, on the basis of alleged Will executed by Ratanchandra Jain in her favour. Per contra, her son- Pushpendra Kumar Jain not only received the rent of the shop regularly but he filed a civil suit of the adjacent shop in the capacity of owner of the whole building. Therefore, the applicant can not be held to be owner or landlord of the disputed property. 18. Per contra, her son- Pushpendra Kumar Jain not only received the rent of the shop regularly but he filed a civil suit of the adjacent shop in the capacity of owner of the whole building. Therefore, the applicant can not be held to be owner or landlord of the disputed property. 18. The legal position expounded in the above judgments cited by learned senior counsel for non-applicant cannot be disputed that one of the co-owners can file eviction application but in this case, as discussed above, the applicant has not been found to be the co-owner of the disputed property, therefore, being quite distinguishable the same do not help the applicant. On the other hand, as per the legal position expounded by the judgments cited on behalf of the non-applicant the applicant is not entitled for order of eviction in the absence of landlord-tenant relationship between the parties. 19. In view of the above, the applicant has failed to establish that she is landlord of the non-applicant tenant rather in the obtaining circumstances, this Court finds substance in the contention of the non-applicant that the special provisions for eviction envisaged under Chapter-III-A of the Act have been misused by the applicant by filing eviction application in connivance with her son. 20. Thus, learned Rent Controlling Authority has erroneously recorded the finding with regard to landlord tenant relationship between the parties without application of mind which is not sustainable at all. 21. Before passing the order of eviction under Chapter-III-A of the Act the Rent Controlling Authority was also obliged to record the finding of bona fide requirement in favour of the applicant but it has failed to do so. 22. Since the pleadings and evidence of both the sides are available on record and learned counsel for both the sides have addressed this Court on this issue, therefore, instead of remanding the matter to the Rent Controlling Authority, the same is being considered hereinafter. 23. True it is that there is a presumption of bona fide requirements in favour of the applicant under the Chapter-III-A of the Act but the same is very well rebuttable. The applicant-Sushila Devi has pleaded bona fide requirement of the disputed shop for her own business and not for family member(s). 23. True it is that there is a presumption of bona fide requirements in favour of the applicant under the Chapter-III-A of the Act but the same is very well rebuttable. The applicant-Sushila Devi has pleaded bona fide requirement of the disputed shop for her own business and not for family member(s). Indisputedly, the applicant is an old lady aged about 82 years and in such a elderly age and physical condition as stated by her own witness-Ramesh Khatik, she does not appear to be capable of starting business at her own. However, for the sake of arguments, it is taken to be correct that she is capable of doing business independently, her bona fide requirement is otherwise not established due to availability of equally suitable shops in the same building. 24. The applicant has examined Ramesh Khatik (A-3) who categorically stated that two shops adjacent to the disputed shop are lying vacant which can very well be used by the applicant. It is also not in dispute that one shop adjacent to the disputed shop was got vacated by the son of the applicant which was sold to some other person. Thus, the applicant has failed to establish her bona fide requirement. Therefore, on this count also, she is not entitled for eviction order. 25. In view of the above discussion and reasons stated, this revision deserves to be allowed and is hereby allowed. The impugned order is quashed and set-aside. Application filed by the applicant for eviction under Chapter-III-A of the Act is dismissed. No order as to costs.