Bantu Krishna Patra vs P. Rajgopal Subudhi and Others

G.K. Misra, C.J.—Eviction from a shop house is in dispute. The Petitioner is the tenant. The landlord (opposite party No. 1) filed an application for eviction of the Petitioner u/s 7 of the Orissa House-Rent Control Act, 1967 (hereinafter to be referred to as the Act) on three grounds, namely:

(i) the tenant was in arrears of house rent;

(i) the repair of the house was not attended to for a pretty length of time; and

(iii) the house was required in good faith for the business of the son of the landlord.

The shop house stands in front of the residential house of the landlord wherein he also carries on his business of cloth. The tenant challenged all the grounds of eviction. The House Rent Controller held that the tenant was not in arrears of rent but he allowed eviction on the ground that the house needed immediate repair and the landlord required the house in good faith for business of his son. In appeal the A.D.M. (Judicial) rejected all the grounds of eviction as unsustainable. The landlord filed a writ application under Articles 226 and 227 of the Constitution against the order of the A.D.M. (Judicial), Before a Bench of this Court consisting of R.N. Misra and K.B. Panda. JJ., the advocate for the landlord conceded that eviction on the ground of arrears of rent cannot be supported. A ground was, however, urged that the contractual period of tenancy having expired in 1971 there was no relationship of landlord and tenant and on that ground the tenant was liable to eviction. Without going to the other two questions the Bench remanded the case to the appellate authority for reconsideration on the other two points as well as on the new point urged regarding the expiry of the tenancy. After remand the A.D.M. (Judicial) held that the landlord failed to establish that there was damage to the house or that he required the shop house in good faith. He, however, allowed eviction on the ground that the tenancy having terminated in 1971 there was no relationship of landlord and tenant and the tenant was liable for eviction on that ground. It is against this order of the appellate authority passed on 18th December, 1973 that the writ application has been filed under Articles 226 and 227 of the Constitution.

Mr. Misra for the landlord concedes that the landlord has failed to prove damage to the house. He also does not support the conclusion of the appellate authority that the tenant is liable to eviction on expiry of the contractual period of tenancy. The concession of Mr. Misra on both the Courts is well founded. The first is concluded by pure finding of fact that the landlord has failed to establish that the tenant caused any damage to the house which is likely to impair materially the value or utility of the house.

3 The conclusion of the appellate authority that after expiry of the contractual period of tenancy from 1968 to 1971 the tenancy came to an end is wholly untenable in law. When the tenancy was created in respect of the shop house it was a monthly tenancy and unless a tenant is liable to eviction u/s 7 of the Act the tenancy cannot be terminated. The matter is concluded by several decisions see Kasi Rout Vs. Mahammad Saleh and Others,

Mr. Misra, however, urged that the conclusion of the appellate authority that the landlord did not require the house in good faith for business of his son is unsustainable in law and it committed an error of law apparent on the fact of the record in arriving at such a conclusion. He took us through the finding of the appellate authority. The finding is based on the evidence of the landlord (P.W.2), his son (P.W.4) and a relation (P.W.3). There is no evidence on behalf of the Petitioner challenging the assertion of the landlord excepting by a bare denial in his evidence. P.w. 2 deposed that his son wanted to have a business in the disputed shop house. The same is supported by the evidence of the son (P.W.4). The appellate authority discarded this story on the ground that there was discrepancy in their evidence as the father deposed in cross-examination.

"My son wants to improve and extend his business." The learned appellate authority construed the sentence as meaning that the son had already started business and he wants to improve and extend the business and this statement rencounter to the evidence of the son that after having passed the Matric Examination he was desirous of having a business in the shop house. After having carefully considered the evidence we are at a loss to understand how the learned appellate authority could read any inconsistency between the two statements. Admittedly, the father has a cloth business. It belongs to the joint family in which the son has an interest. If the father makes a statement that the son wants to improve and extend the business it does not necessarily posit that the son actually had engaged himself in the business earlier. At any rate, there is nothing in the evidence of P.W. 2 to make such an inference and it was open to the advocate for the Petitioner to get an admission that earlier to the application for eviction the son in fact had started doing the business. In the absence of any cross-examination to that effect we are unable to see any contradiction between the evidence of P.W. 2 in his examination-in-chief and cross-examination or between the evidence of PWs. 2 and 4. There is absolutely nothing to suggest in the cross-examination of P.W. 2 that he did not require the shop house in good faith for his son to do business. Two important feature are to be kept in view in this connection; the landlord is a Kumuti and his profession is doing business; the son has passed the Matric Examination and there is no evidence that thereafter he prosecuted studies. These are circumstances to support the bona fides of the landlord that he requires the house in good faith for the business of his son which is also a joint family business.

We are satisfied that the conclusion of the appellate authority was unreasonable, contrary to common sense of view, and suffers from error of law on the face of it.

The only difficulty not to sustain the order of the lower appellate Court is that in exercise of our jurisdiction under Articles 226 and 227 of the Constitution we do not constitute as an appellate authority and do not interfere with a pure finding of fact. But where the finding of fact is not based on the pure appreciation of evidence but in contrary to the evidence on record and the evidence has been misconstrued and the correct law is not kept in view, the finding can be interfered with. In Haji Ahmed Haji Ibrahim Vs. Hadu Subudhi and Another, , a Bench of this Court reviewed the entire law on the point and formulated the following propositions which may be enumerated:

(i) The word "require" involves something more than a mere wish and must at least involve some element of need.

(ii) The onus is on the landlord to show certain circumstances or facts proving some need or necessity.

(iii) The statute, however, does not insist that a need must he an absolute one. It is not necessary for the landlord to prove that he would be thrown to the streets unless he gets the accommodation.

(iv) The need of the landlord must be an honest one. It would not be the outcome of an oblique motive or false pretence. A requirement which is not capricious or unfair or absurd would be reasonable. The concept of good faith'' takes within its sweep the absence of an idea to deceive.

(v) Whether the landlord requires the house in good faith is always a question of fact. The Court is entitled to look to every relevant fact or circumstance affecting the landlords and their position. The nature and character of the landlords accommodation at the time when they are asking for the relief of possession and the scope, size and character of their requirement are all relevant factors that the Court might consider in that context.

To the aforesaid summary a further element may be added that the landlord is the best Judge of his own requirement. If it is not the outcome of an oblique motive or false pretence the same is not to be tested by a very rigorous standard requiring the landlord to establish the case beyond reasonable doubt. The onus would be discharged by weighing the balance of probabilities.

As would appear from the exposition of law given above, the landlord is the best Judge of his own requirement. If it is not the outcome of an oblique motive or false pretence the same is not to be tested by a very rigorous standard requiring the landlord to establish the case beyond reasonable doubt. A requirement which is not capricious, unfair or absurd would be reasonable.

The requirement in this case is of the father inducting the son into the family business. They belong to the Kumuti family who are professionally businessmen and the son wants to do business after having passed Matric. The requirement is not capricious, unfair or absurd. It is quite reasonable.

The appellate authority did not keep the correct law in view. It misconstrued the evidence and exercised its jurisdiction illegally in arriving at a conclusion by committing error of law on the face of it.

Ordinarily we do not substitute a finding of fact recorded by the appellate authority by our own conclusions. This is, however, a peculiar case in which at an earlier stage the case had been remanded for reconsideration by the appellate authority. It would be putting the parties to unnecessary harassment to sent the case back again. Both the parties placed the entire evidence before us which we have already summarised. There is nothing more for the appellate authority to re-determine. In the peculiar circumstances of this case we are clearly of the conclusion that the landlord requires the house in good faith for his own occupation. It is to be noted that occupation of the landlord''s son is occupation of the landlord himself within the meaning of Section 7(4) of the Act.

In the result, the writ application is dismissed but on a ground different from the one that appealed to the appellate authority. In the circumstances, parties to bear their own costs.

P.K. Mohanti, J.

I agree