Kamal Kishore Sharma vs Smt. Tarabai

R.C. Lahoti, J.

Right of the tenant-Petitioner to adduce evidence in proceeding under Chapter III-A of M. P. Accommodation Control Act, 1961 (hereinafter referred to as the "Act"), having been closed for default in producing the witnesses as also in filing list of witnesses, the case has been directed by the Rent Controlling Authority, Gwalior to be posted for recording evidence of the landlord/non-Petitioner. Feeling aggrieved, the tenant/Petitioner has rushed up to this Court.

Facts relevant for the purpose of adjudicating upon the controversy arising in the revision are: that the landlord claims to be widow, enlisted in Section 23-J of the Act, and is seeking ejectment of the tenant under Clause (a) of Section 23-A; leave to defend has already been granted by the Authority to the tenant; guided by the presumption arising in favour of the landlord under Sub-section (3) of Section 23-D of the Act, the tenant has been asked to lead his evidence before that of the landlord.

The submission of the learned counsal for the Petitioner is that the Authority acted with material irregularity in the exercise of its jurisdiction, occasionig failure of justice, by directing the tenant to take a leand in the matter of adducing evidence and thereafter closing his evidence, though the lanlord had not yet opened her innings at the trial.

The presumption arising under Sub-section (3) of Section 23-D of the Act has been a source of controversy arising in several cases before the Rent Controlling Authorities, as also in several revisions before this Court. It will therefore be appropriate to examine the scheme underlying Chapter III-A of the Act to determine the nature, extent, scope and effect of the presumption.

A landlord seeking ejectment of a tenant on the ground of his personal requirement, contemplated by Clause (a) of Section 23-A of the Act, as can be usefully gathered from a Full Bench Decision in Damodar Sharma and Another Vs. Nandram Deviram, , has to fulfil three conditions before he may succeed in these proceedings:-

(i) that he requires the accommodation for the residence of himself or for any member of his family or for a beneficiary;

(ii) that the requirement is bona fide;

(iii) that he or such other person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned.

In addition he has also to satisfy-

(iv) tha the accommodation if acquired by transfer, a period of one year has elapsed from the date of such acquisition; and,

(v) that he is a landlord falling within one of the categories contemplated by Section 23-J of the Act,

For then alone he can avail the benefit of special forum and expeditious procedure provided under Chapter III-A of the Act.

It is noteworthy that by virtue of Amending Act of 1983, a special forum was made available to landlords in generel seeking eviction of their tenants on the ground of bona fide need, but as the statement of objects and reasons of the Amending Act of 1985 indicate that tendency at misuse of the newly created forum having been noticed by the Government it was proposed to restrict the forum the only special categories of landlord referred to in Section 23-J of the Act. In several cases, this Court has laid down that the Authority was obliged to determine its jurisdictional competence as to whether it was entitled to hear and dispose of the matter before it and that had to be done by the Authority applying its mind to the material avails able and determining whether the landlord was one referred to in ection(sic) 23-J, for then alone the Authority could touch the matter. [See Rambharose V. Shashi 1986 I MPWN 15 and Jumma v. Birla 1987 MPRCJ 236.

In an adversary system of justice, it is for the parties to join pleadings and adduce evidence in support of their respective cases on all points of controversy, consistently with the rules relating to burden of proof. The presumptions wich are outcome sometimes of necessity and sometimes of convenience, have a limited role to play and cannot be stretched beyond their own length and width. Ordinarily a landlord would be obliged to prove all the ingredients touching his requirement before the tenant may be ordered to be evicted because the burden of proof would lie on him, for he would fail if none adduced any evidence. While adjudicating upon the bona fides or otherwise of the requirement, the Courts have an active but complex role to play. Well settled is the position that issue as to bonafides of the requirement has to satisfy an objective test and would not be left to be judged by the subjectivity of the landlord. In Damodar''s case (supra) the word "genuine" qualifying the term "requirement" in a statute parimateria came up for interpretation and this Court held

The word ''genuine'' means that which proceeds from its reputed source, sincere and not false, fictitious, simulated or spurious This is the meaning ascribed to the derivative ''genuinely'' occurring in Section 4 (h) of the M. P. Accommodation Control Act. The word ''requires'' implies that it is more under the force of personal circumstances than under the impulse of desire that the landlord needs the premises, though the element of desire is not altogether absent .

What has been said as to the term ''genuine'', applies with equal force to the term ''bona fide'' occurring in Section 23-A of the Act. Interpreting the provision, in Lalta Prasad v. Ramcharan 1986 JLJ 713 this Court observed thus (vide para 6):

..it is not only the requirement per se ''bona fide" of the landlord, of the tenanted accommodation, whether for "himself" or for "any member of his family" ''that invests the Authority with jurisdiction to decide and grant the application made u/s 23-A (a). It is rather, the bona fide nature of the landlord''s requirement which must be duly pleaded and proved, except in such cases as are legislatively otherwise provided for.

(Emphasis supplied).

Apparent necessity of the landlord joining pleadings not on only the question of requirement, but also on bona fides, was emphasised, also emphasising the necessity of proof by landlord in the event of the averment being traversed.

Sub-section (3) of Section 23 D is limited in its operation to the ''bona fide nature'' of requirement. The presumption touches not the factum of requirement but its qualitative nature. If the landlord has pleaded and proved all other ingredients of the provision, the Legislature mandates the Authority to presume that the requirement pleaded and proved by the landlord is bona fide. In other words, the landlord having proved the requirement, need not go ahead and prove the bona fides too; he may leave it to the tenant to disprove the bona fides which the Legislature has benevolently presumed in his favour. Of course, the tenant having proved the lack of bona fides either by adducing his evidence or by cross-examining the landlord and/or his witnesses the onus would shift on the landlord to demonstrate his bona fides from the material available on record. The presumption does not go any beyond.

In Rambharose v. Shashi Sharma 1986 I MPWN 15, this Court having examined the language of Sub-section (3) of Section 23-D of the Act, said:

....the language used in the Sub-section itself, which explicitly limits the scope of the presumption to the question of "bona fide" or otherwise of the requirement, and it does not create any presumption of the validity of the claim made by the landlord u/s 23-J.

Referring to the earliar view of this Court, it was further said in Rambharose (supra) that Section 23-J was an independent provision and the landlord who sought benefit thereof could invoke the jurisdiction of the Authority but had to make out his case and the Authority was obliged to decide that jurisdictional question.

In M/s. Sunil Cloth Stores v. Mrs. Debal Begum 1986 MPRCJ 147 it was held by referring to a Division Bench decision of this Court in B Johnson v. C. S. Naidu 1985 JLJ 793.

...... ..the statutory presumption contemplated under Sub-section (3) aforesaid merely shifts the burden to the tenant to rebut landlord''s case as held in B. Johnson (supra) but the landlord is not still relieved of his duty to make out his case under Clause (1) or Clause (b) of Section 23-A to invest jurisdiction in the Authority to grant relief to him thereunder.

The view was reiterated once again with emphasis in Dr. Mahesh Kumar v. Smt. Neelma Rastogi 1986 MPRCJ 238.

The expression ''it shall be presumed, unless the contrary is proved". in my opinion, does not at all absolve the Plaintiff of its duty to prove its case on the ground of bona fide requirement, contemplated under Clause (b) of Section 23-A to invest the Authority with jurisdiction to pass the decree of eviction on reaching judicially, reasonable satisfaction, on cogent materials for the ground being proved.

In Gyanibai v. Shankar 1987 I MPWN 160 it was held:-

.......that despite the presumption u/s 23-D (3) of the Act as to the bona fide'' nature of the requirement, it has first to be prima facie found as a fact that the requirement of the persons as contemplated by the law exists.

In Saved Anis v. Sarjeet Singh 1987 II MPWN Note 145, a revision preferred by a tenant against an order of eviction under Chapter III-A of the Act was allowed, dismissing the landlord''s claim, though presumption was forcefully relied on by the landlord. This Court observed that presumption of bona fide requirement drawn in favour of the Plaintiff had been rebutted by the Plaintiff''s cross-examination though the Defendant had adduced no evidence. Rebuffing an effort at stretching the scope of the presumption, this Court observed: -

There is no presumption of alternative accommodation. That burden definitely lay upon the Plaintiff to prove that he has no other reasonably suitable accommodation for his residence in that town. Therefore, he is not only required to prove that he needs the suit accommodation for the residence of himself or members of his family he has also got to prove the other limb of the Act that for that purpose he has no other reasonably suitable accommodation in that town.

Thus, the presumption was not allowed to be stretched in its operation beyond the point of bona fides. In Faquir Ghana v. Nathmal 1989 MPRCJ NOC 17 in more or less similar circumstances this Court quashed the order of the Authority directing the tenant to lead evidence first.

The upshot of the abovesaid discussion is that the presumption arising under Sub-section (3) of Section 23-D of the Act is a presumption attaching with the mental State of landlord. It cannot be applied to any other constituent of the ground covered by Clause (a) of Section 23-A of the Act. It is more or less a rule of evidence which would presume the requirement to be bona fide. The factum of requirement itself, along with other constituents of the provision having been proved by the landlord presumption upon which a landlord may rely is only for proof of bona fides of the requirement, leaving it for the tenant to establish that there was lack of such bona fides. A presumption would be raisad only on factual/foundation. To presume ''bona fides'' of a requirement, firstly the requirement has to exist. The question of presuming bona fides would never arise if there were no ''requirement'' at all. Leave to defend having been granted and the parties being at issue on several ingredients of Clause (a) or (b) of Section 23-A of the Act (other than that of bona fides), the tenant cannot be directed to lead evidence first.

For all the feregoing reasons, the revision is allowed. The impugned order is set aside. The Authority shall ask the landlord to lead evidence first and thereafter call upon the tenant to lead his evidence. No order as to costs.

The parties are directed through their respective counsel to appear before the Rent Controling Authority, Gwalior on 25-9-89.