Naval Kishore Tapadia vs Munnilal Tailor

By this common judgment Second Appeals No. 343/1998, 342/1998, 345/1998 and 346/1998 are decided analogously. The main judgment is written in Second Appeal No. 343/1998 as learned Counsel appearing for the parties have referred to the evidence and document recorded in this second appeal.

All the four second appeals have been preferred by the landlord/Plaintiff whose suit for eviction of the Defendant/Respondent was decreed by the trial Court on grounds covered under Clauses (e) and (h) of Sub-section (1) of Section 12 of the Chhattisgarh Accommodation Control Act, 1961 (henceforth''the Act, 1961''), however, on appeal preferred by the Defendant/tenant, the first appellate Court, while allowing the appeal, has set aside the judgment and decree passed by the trial Court and consequently the suit preferred by the Appellant/landlord stood dismissed.

The case of the Plaintiff, in nutshell, is that the Defendant was inducted as a tenant in the suit premises by his father late Maniklal Tapadia, however, after death of the father, the suit premises has fallen in the share of the Plaintiff in a family arrangement and as such he is the owner of the premises. According to the Plaintiff, the suit premises is the oldest building of Dongargarh town and is in a dilapidated condition and may collapse at any time. The Municipal Council, Dongargarh has also issued a notice to the Plaintiff on 25-7-1984 and thereafter on 29-6-1990 u/s 221 (2) of the Act, 1961 for demolition of the house on the ground that it is not fit for dwelling and it endangers human life. His building consultant has also issued a certificate that the house may collapse at any time. Thus, the Plaintiff set up a ground for eviction u/s 12(1)(h) of the Act, 1961 by pleading that the accommodation is required bona fide for the purpose of re-building, which cannot be carried out without the accommodation being vacated.

The Plaintiff further stated that he is presently residing and employed at Nagpur, however, he intends to shift to Dongargarh to start his own business and to reside permanently in the town of Dongargarh and as such he bona fide requires the suit premises for his own residential need. It was also stated that the Defendant has illegally occupied open space behind the suit house and has raised kachcha construction and that on account of intense rain the premises in the possession of tenant Lekhraj has collapsed on 21-8-1992 and the remaining blocks including the tenanted premises may also collapse any time.

The Defendants, by filing their separate written statements in each of the suits, stated that they have no knowledge about the family arrangement or partition and, thus, the Plaintiffs ownership was denied. It was stated that the suit shop is joint family property of the legal heirs of the late Maniklal Tapadia. It was denied that the suit premises is in dilapidated condition or that it may collapse any time. According to the Defendant, the Plaintiff is not carrying on regular repairs even after receiving the monthly rent of Rs. 30/- regularly. Notice issued by the Municipal Council has been denied for want of knowledge. The projected residential need of the Plaintiff was also denied. It was stated that the Plaintiff has sufficient space and accommodation to start his business as also to reside in the part which is in his possession. Plaintiffs pleading about the encroachment made by the Defendant has been denied and it was stated that the suit has been filed without any cause of action and for harassing the Defendant.

The trial Court, by its judgment and decree dated 30-10-1995, decreed the suit after holding that the Plaintiff is the owner of the suit premises, the premises is in dilapidated condition and the Plaintiff bona fidely needs the premises for reconstruction as well as for his bona fidely residential need and that for the said need the Plaintiff has no other reasonably suitable accommodation in the town of Dongargarh. Additional issue No. 6 was also decided in favour of the Plaintiff to hold that the premises in possession of another tenant Lekhraj has collapsed on account of intense rain on 21-8-1992 and that the Defendant has encroached some area over and above the tenanted area in the back portion of the premise 3 by raising kachcha construction.

The first appellate Court has allowed the appeal filed by the Defendant/ tenant. The first appellate Court found that the suit has been preferred by the Plaintiff''s attorney-holder and the Plaintiff has not entered the witness-box and that the Plaintiff appears to have settled in Nagpur and it is highly improbable that he will leave a city like Nagpur to settle in a small town like Dongargarh. Thus, the ground regarding bona fide need has been negatived by the first appellate Court on the above reasoning. It has also been found by the first appellate Court that since last so many years the premises has been held by the tenants and they are residing therein and, therefore, it cannot be said that the premises is in dilapidated condition. The ground u/s 12(1)(h) of the Act, 1961 for reconstruction has, thus, also been negatived by the first appellate Court.

The instant second appeal has been admitted on the following substantial question of law:

Whether the lower appellate Court while reversing the findings of the trial Court committed an error of law by holding that the Plaintiff does not require the suit premises bona fide?

Learned Counsel for the Appellant has argued that the learned first appellate Court ought not to have interfered with the findings recorded by the trial Court regarding the bona fide need for residential purpose as also his bona fide requirement for reconstruction. He has argued that in a suit for eviction it is not necessary for the landlord to enter the witness-box and that the statement made by his attorney-holder should have been considered sufficient to hold that the Plaintiff, who is presently residing in a tenanted premises at Nagpur while in service requires the accommodation bona fidely for his own occupation and to satisfy his residential need. According to him, the first appellate Court has taken an unreasonable and uncharitable view of the need of the landlord and has returned the finding about bona fide need in a perverse manner. He has also submitted that the accommodation is in dilapidated condition and the lower appellate Court should have held that the Plaintiff has successfully proved a ground for reconstruction u/s 12(1)(h) of the Act, 1961.

Per contra, learned Counsel for the Respondent/tenant has argued that the first appellate Court has dealt with the entire evidence in an objective manner and has recorded the findings about bona fide need as well as for reconstruction after considering the entire evidence available on record and the said findings are not perverse. According to him, in a case of bona fide need of the Plaintiff/landlord for his own use, it was incumbent upon him to have entered the witness-box, however, since the Plaintiff has not appeared even once in course of trial, the statement made by the attorney-holder to prove the personal need of the landlord/ Plaintiff is not sufficient, therefore, the judgment and decree passed by the first appellate Court does not call for any interference.

The question of law framed by this Court refers to the bona fide requirement of the Plaintiff without specifying as to whether such bona fide requirement is with respect to ground u/s 12(1)(e) or u/s 12(1)(h) of the Act, 1961 or under both the provisions. Learned Counsel for the Respondent, therefore, required the Appellant as to whether he is confining his argument to bona fide need u/s 12(1)(e) of the Act, 1961 or under both the grounds u/s 12(1)(e) and (h) of the Act, 1961. Learned Counsel for the Appellant stated that the question of law formulated by this Court should be understood to have covered both the grounds u/s 12(1)(e) and (h) of the Act, 1961.

To appreciate and consider the rival submissions made by learned Counsel for the parties, it is apt to refer to the provisions contained in Section 12(1)(e) and (h) of the Act, 1961, which read as under:

Section 12. Restriction on eviction of tenants - (1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely:

(e) that the accommodation let for residential purposes is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned;

(h) that the accommodation is required bona fide by the landlord for the purpose of building or rebuilding or making thereto any substantial additions or alterations and that such building or rebuilding or alterations cannot be carried out without the accommodation being vacated]

To prove a ground u/s 12(1)(e)of the Act, 1961, the landlord is required to prove his prima facie ownership, his bona fide need and that he has no other reasonably suitable accommodation in the town concerned. To appreciate as to whether the landlord has been able to prove his bona fide requirement u/s 12(1)(e) of the Act, 1961 this Court would now consider the material and the evidence available on record. The suit/plaint was submitted on 7-11-1990 under the signature of one Nand Kishore Tapadia, acting as the power of attorney-holder of the Plaintiff Naval Kishore Tapadia. Ex.P-1A is a notice issued by the Dongargarh Municipality u/s 221 (2) of the Municipalities Act on 25-7-1984. Ex.P-2A is another similar notice dated 29-6-1990. Ex.P-3 A is a certificate dated 4-7-1990 issued by one M.L. Chitlangia, the Town Planner, Rajnandgaon. It bears signature of one Anil Gattani, who inspected the premises. It also bears notice and endorsement by one V. Chirag, who appears to be a Civil Engineer. Ex.P-4 is a copy of the maintenance khssra of Dongargarh town, wherein the suit plot/house is entered in the name of the Plaintiff Naval Kishore Tapadia. The Plaintiff has examined the attorney-holder Nand Kishore Tapadia, who is the real brother of the Plaintiff Naval Kishore Tapadia. P.W. 2 Sunderlal Tapadia is the younger brother of the Plaintiff and P.W. 3 Dhaniram Tarane is a person who is a resident of the locality. The Defendant has examined himself as D.W. 1 (in the civil suit from which Second Appeal No. 343/1998 has arisen), whereas D.W. 2 Lekhraj Singh is a person whose accommodation has collapsed as pleaded by the Plaintiff Naval Kishore Tapadia. D. W.-3 Mohd. Salim is a person residing opposite the suit premises.

With regard to the reasoning assigned by the first appellate Court regarding non-examination of the Plaintiff and mpermissibility/non-acceptance of the statement regarding bona fide need made by the attorney-holder, learned Counsel for the Appellant has relied on Shiv Narayan Soni v. Smt. Parwati Bai Meshram 1997 (1) VB 280. In paragraph 7 of the said judgment, a Single Bench of the High Court of Madhya Pradesh has held thus:

An attempt was also made to assail the order stating that the bona fide need of the landlady was not proved as she herself has not entered the witness box. This argument has also no force. She being a lady had executed general power of attorney in favour of her son who entered the witness box to prove her case. There is no law that the bona fide need can be proved only by the evidence of the landlady. It can also be proved through other witnesses. She being a lady and she having executed a power of attorney in favour of her son it was not compulsory for her to enter the witness box. Her husband was a Government servant and was occupying a Government accommodation. He retired and thereafter died. The eviction case was instituted in 1984 and till this date the landlady has not been able to get the possession of the accommodation because of the untenable defences raised on behalf of the tenant. The revision is, therefore, dismissed with costs. Counsel''s fee Rs. 500/-, if certified.

In Smt. Shanti Devi Agarwal Vs. V.H. Lulla, , a Single Bench of the High Court of Madhya Pradesh, after relying on Shiv Narayan Soni v. Smt. Parwati Bai Meshram 1997 (1) V B 280 (supra), referring to Purushottam Umedbhai and Co. Vs. Manilal and Sons, , T.C. Mathai and Another Vs. The District and Sessions Judge, Thiruvananthapuram, Kerala, , P. Punnaiah and others Vs. Jeypore Sugar Co. Ltd. and others, , has held that in a case for eviction under the Act, 1961 bona fide need of the landlord can be proved by any member of the family as also by an attorney-holder being a member of the family. In this case, a judgment of the Rajasthan High Court in Ram Prasad Vs. Hari Narain and Others, , has been referred and disagreed (in paragraph 11).

In a subsequent judgment in Janki Vashdeo Bhojwani and Anr. v. Indnsind Bank Ltd. and Ors. AIR 2004 SCW 7064 , the Supreme Court approved the judgment of the Rajasthan High Court in Ram Prasad Vs. Hari Narain and Others, (paragraph 21 of the AIR SCW) and has held that a general power of attorney-holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party though he can only appear in his own capacity.

In view of the law laid down by the Supreme Court as above, it is to be seen whether in a suit for eviction preferred by the Plaintiff/landlord on the ground of bona fide need, it is necessary for him to enter the witness-box and if he has not entered the witness-box, but he tried to prove the case by examining his attorney-holder (his real brother in the present case) whether such evidence is sufficient end is legally acceptable to prove bona fide need even if it is treated that the attorney-holder has not deposed as an agent of the Plaintiff but as a witness of the Plaintiff.

As already referred above, a Single Bench of High Court of Madhya Pradesh (by Hon''ble Shri D.M. Dharmadhikari, J. as His Lordship then was) in Shiv Narayan Soni v. Smt. Parwati Bai Meshram 1997 (1) VB 280 (supra) has held that there is no law that the bona fide need can be proved only by the evidence by the landlady and that it can also be proved through other witnesses. It was observed that she (the landlady in that case) being a lady and she having executed a power of attorney in favour of her son it was not compulsory for her to enter the witness-box. Another Single Judge of the High Court of Madhya Pradesh, in Bashir Vs. Smt. Hussain Bano, , while faced with a similar question and after relying on Shiv Narayan Soni v. Smt. Parwati Bai Meshram 1997 (1) VB 280 (supra) has held that it is not necessary for the landlord to enter the witness-box to prove the ground of bona fide need.

In yet another Single Bench judgment in Vimladevi v. Dulichand 1994 (1) MPJR 144, (by Hon''ble Shri R.C. Lahoti, J. as His Lordship then was) has held that even when the owner landlady did not enter the witness-box and her husband, a power of attorney-holder, appeared and deposed, non-examination of Plaintiff was not fatal.

It is born out from a combined reading and understanding of the above mentioned case laws that in a suit for eviction on the ground of bona fide need, it is not necessary for the landlord to enter the witness-box and his bona fide need cannot be negatived only on the ground that the Plaintiff/landlord has not entered the witness-box. True it is that the Supreme Court in Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. AIR 2004 SCW 7064 (supra) has held that the power of attorney-holder cannot depose in place and instead of principal, it is required to be seen as to whether only on this ground the Plaintiff/landlord can be non-suited or the evidence adduced by the attorney-holder, who will be treated as a witness of the Plaintiff rather than an agent of the Plaintiff, can be accepted. This Court is of the opinion that even if P.W. 1 Nand Kishore Tapadia is not treated as an agent of the Plaintiff, he still remains a witness of the Plaintiff and being his real brother and P.W. 2 Sunderlal Tapadia being another real brother of the Plaintiff having also entered the witness-box to support the Plaintiff''s plea of bona fide need, the ground u/s 12(1)(e) of the Act, 1961 is required to be examined on the basis of the evidence available on record.

The first appellate Court has non-suited the Plaintiff on the ground covered u/s 12(1)(e) of the Act, 1961 mainly on the reasoning that- (i) the Plaintiff has failed to prove his exclusive ownership, (ii) Ex.P-4, the maintenance khasra is not sufficient to prove ownership, (iii) the Plaintiff having not entered the witness-box, the evidence of his agent/attorney-holder cannot be accepted and (iv) that P.W. 1 Nand Kishore Tapadia and P.W. 2 Sunderlal Tapadia, the brothers have not been able to prove his bona fide need.

As regards the ownership of the Plaintiff, it would be sufficient to point out that the Plaintiff has filed the maintenance khasra Ex.P-4, wherein his name has been recorded as owner of the suit premises. On the other hand, the Defendant has not led any clinching evidence either oral or documentary to disprove the legal effect of the maintenance khasra Ex.P-4. The appellate Court appears to have wanted the landlord to prove his title as if it is a suit based on title, whereas the requirement of law for the landlord to prove his ownership in a suit for eviction is that he has to demonstrate his primafacie title on the suit premises. The Supreme Court in Sheela and Others Vs. Firm Prahlad Rai Prem Prakash, , has held that "ownership is a relative term the import whereof depends on the context in which it is used. In Rent Control Legislation, the landlord can be said to be owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in a landlord - tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit". In Sheela and Others Vs. Firm Prahlad Rai Prem Prakash, , the Supreme Court referred to two of its earlier decisions in M.M. Quasim Vs. Manohar Lal Sharma and others, and Dilbagrai Punjabi Vs. Sharad Chandra, , to conclude that an owner landlord who can seek eviction on the ground of his personal requirement, who has a right against the whole world is to occupy the building in his own right. In Dilbagrai Punjabi v. Sharad Chandra 1988 SCC 710 (supra), the Supreme Court accepted the plea of ownersliip merely on the basis of an admission by the Defendant in reply to the legal notice given before the institution of the suit and the recital of the name of the Plaintiffs the owner of the property contained in the receipts issued by the landlord to the tenant over a period of time. The Supreme Court found this piece of evidence to be sufficient to prove the ownersliip of the Plaintiff/landlord in the limited sense in which it is referred and used in Rent Control Legislation. When the law is thus settled by the Supreme Court, in the present case, the Plaintiff has filed Ex.P-4, which is a maintenance khasra maintained by the Revenue Department of the State Government. He has come-up with a plea of family settlement in which the suit house has fallen in his share. His two real brothers have entered the witness-box and have supported the Plaintiff''s case of partition. They have not been cross-examined by the Defendant to bring out the truth, as claimed by the Defendant that there has been no partition in the family. Moreover, the Defendant has admitted in his written statement that the Plaintiff is the co-owner. The law is settled in this regard that a co-owner of a premises is an owner for the purpose of Rent Control Act and a co-owner can alone maintain a suit for eviction against the Defendant, if other co-owners do not object. P.W. 1 Nand Kishore Tapadia and P.W. 2 Sunderlal Tapadia, who are the real brothers of the Plaintiff, one of them being the Plaintiff''s attorney-holder, have not objected to the suit of the Plaintiff. Thus, the finding by the first appellate Court that the Plaintiff has not been able to prove Ms ownership is absolutely misconceived and perverse. Such a finding could not have been recorded in the teeth of law settled by the Supreme Court in Sheela and Others Vs. Firm Prahlad Rai Prem Prakash, .

In paragraph 28 of the appellate judgment, the appellate Court has disbelieved the plea of the Plaintiff for having not entered the witness-box. As already found, bona fide need can be proved by examining the other witness as also the attorney-holder, who may not act as an agent of the Plaintiff but can appear as a witness of the Plaintiff. Thus, the reasoning assigned by the appellate Court in paragraph 28 of its judgment to non-suit the Plaintiff on the ground of bona fide need is also not legally sustainable. The appellate Court has also found that it is not clear as to whether the Plaintiff is in business or in service at Nagpur, therefore, it appears that the suit has been filed only to seek eviction because the person settled in a big city like Nagpur may not like to shift to a small town like Dongargarh. In the opinion of this Court, such a presumption cannot be drawn in a suit for eviction. A landlord is free to choose his own place of business or residence and a presumption cannot be drawn that a person can never move from a bigger city to a smaller city. In this complex world, each individual has his own compulsions and requirement, which are to be tested on the basis of the requirement of law to prove his bona fide need and not on the basis of presumption. In any case, it has been held by the Supreme Court in Dattatraya Laxman Kamble Vs. Abdul Rasul Moulali Kotkunde and Another, , that Courts ought not to take an uncharitable view towards the landlord. It has been held in paragraph 13 of the report thus:

That apart, the Appellant is not a total novice in the field of dealings in electrical equipment. The fact that the discipline in his academic specialisation was Electrical Engineering is quite indicative of some knowledge he has in the subject, though a business in such commodities may have different phases. Learned Single Judge seems to have written him off as a person totally unfamiliar with any transaction in electrical goods. Such an angle is not a charitable view towards the landlord. At any rate there may be differing views for different people on how to start a business. The High Court has committed jurisdictional error in upsetting a fact-finding merely on the individual view held by the learned Judge about a business venture. We have no doubt that reversal of the appellate court order on the above ground is unsupportable in law and hence is liable to be interfered with. We do so.

This Court is, thus, of the view that the Appellant/Plaintiff/landlord has successfully proved his bona fide need to occupy the suit premises for his residential requirement u/s 12(1)(e) of the Act, 1961.

The Plaintiff/Appellant has also raised ground u/s 12(1)(h)of the Act, 1961 on the pleading that he bona fidely requires the suit premises for reconstruction, which cannot be done without the premises being vacated. The evidence in this regard is weak and does not inspire confidence. Admittedly, the Defendants, in each of the four suits, are residing in the premises since long and even during pendency of the suit from 1990 the house has not collapsed. As against the statements of P.W. 1 Nand Kishore Tapadia and P.W. 2 Sunderlal Tapadia, who are brothers of the Plaintiff and P.W. 3 Dhaniram Tarane, who is a resident of the locality, the evidence of the Defendant in each of the four suits and that of the other witnesses, namely, D.W. 2 Lekhraj Singh and D.W. 3 Mohd. Salim are to the effect that the suit house is not in a dilapidated condition. The evidence of the Defendant, as accepted by the first appellate Court, appears to be probable. Moreover, the Plaintiff has not proved the ingredients of Section 12(1)(h) of the Act, 1961 inasmuch as he has not proved the existence of a plan for reconstruction, the funds available for such reconstruction and that the proposed reconstruction will not radically alter the purpose for which the accommodation was let. These are the pre-requisites u/s 12(7) of the Act, 1961, which is essential for the Court to be satisfied before granting a decree u/s 12(1)(h) of the Act, 1961. In view of the fact that the Plaintiff has not proved any of the pre-requisites under Sub-section (7) of Section 12 of the Act, 1961, ground u/s 12(1)(h) of the Act, 1961 is not made out.

The question as to whether in a case where eviction has been sought on both the grounds, i.e., u/s 12(1)(e) and (h)of the Act, 1961 and if the ground u/s 12(1)(h) of the Act, 1961 has not been made out, whether a decree for eviction can still be granted u/s 12(1)(e) of the Act, 1961, is no longer res integra, as has been held by a Division Bench of the High Court of Madhya Pradesh (by Hon''ble Shri R.V. Raveendran, C.J. as His Lordship then was and Hon''ble Shri Shantanu Kemkar, J.) in T.R. Sah Vs. Smt. Kundan Kaur and Others, . In the said case, the Division Bench has held that mere invoking the ground u/s 12(1)(h) of the Act, 1961 in addition to the ground u/s 12(1)(e) of the Act, 1961 will not invalidate the claim for eviction u/s 12(1)(e) of the Act, 1961. While settling the said legal position, the Division Bench relied on the Supreme Court decisions in Ramnikal Pitambardas Mehta Vs. Indradaman Amratlal Sheth, , K.A. Anthappai Vs. C. Ahammed, , Radhey Shyam and Others Vs. Kalyan Mal, , and M/s. Modern Tailoring Hall etc. Vs. H.S. Venkusa and others, .

In view of the above, this Court holds that the Plaintiff has proved his bona fide need for his residential requirement u/s 12(1)(e) of the Act, 1961, however, he has not been able to prove his bona fide requirement for reconstruction u/s 12(1)(h) of the Act, 1961. The substantial question of law is, thus, answered accordingly.