Smt. Devi Bai and Another vs Smt. Rambai

Fakhruddin, J.—The applicants have filed this revision against the order dated 12-8-1998 passed by the Rent Controlling Authority, Dhamtari whereby the Rent Controlling Authority has allowed an application filed by the Respondent-widow u/s 23 of the Accommodation Control Act within the specified category on the ground that the accommodation is needed by her for residential purpose. The widow is aged about 80 years.

The Respondent filed an eviction application u/s 23-A of the M.P. Accommodation Control Act being widow of Lakhanlal Choubey against the tenant Gajanmal. It was contended that the accommodation is required by her as she has no other house at Dhamtari. It was also contended that because of ear disease, she had to come to Dhamtari for treatment and because the tenant was not vacating the house, his son Chandraprakash had to reside in a tenanted house. The application was opposed.

During trial, the Respondent examined Daud Khan, Dayaram, her son who also holds the power of attorney Santosh Kumar and Chandraprakash. The applicant examined himself Parmanand and Manohar. The Court by the impugned order has found that the applicant is the widow.

This Court has also considered the evidence on record and heard the learned Counsel for the parties.

The Plaintiff/landlady''s witness Daud Khan has stated that he has seen the suit house. The Plaintiff/landlady wants to get the house evicted for residing herself along with sons. At that time she resided in Makaradona. The Plaintiff/landlady has some ear disease and for treatment thereof she has to come to Dhamtari. She had no other house at Dhamtari. The house situated at Baniapara is of Bharatlal, brother of Lakhanlal. The another Plaintiff/ landlady''s witness Dayaram has also stated that the Plaintiff/landlady has no other house at Dhamtari and she wants to reside in the suit house. The Plaintiff''s/landlady''s son Santosh Kumar has stated that his mother resides in Makaradona and she is hard of hearing and she has to come to Dhamtari for treatment.

The Defendant in his statement has stated that he has no knowledge that the Plaintiff/landlady comes to Dhamtari for treatment. The Defendant and his witnesses have not been able to demolish the version of landlady/ widow regarding the bonafide requirement and suitability of the accommodation.

Counsel for the Respondent relied on a decision of the Supreme Court in the case of Dhannalal v. Kalawatibai and Ors. AIR 2002 SCW 2873 wherein it was observed that where widow who belonged to classified category of landlord u/s 23-J along with her two major sons arrayed as co-Plaintiffs filed eviction proceedings before the Rent Controlling Authority on the ground of bona fide requirement of major sons who require suit premises for starting their business. Such requirement clearly falling within purview of Section 23-A(b), the proceedings initiated before Rent Controlling Authority is maintainable. Merely because major sons/co-owners do not fall within category of ''landlord'' as defined by Section 23-J it cannot be said that special procedure provided by Section 23-A of Act is not available and that eviction proceedings initiated before Rent Controlling Authority suffer from want of jurisdictional error. Counsel submitted that here in this case, the accommodation is most suitable to the Respondent. She herself wants to reside in the suit house.

So far as the bona fide requirement is concerned, the law is well settled. The Respondent has contended that the suit house is required by her as she is required to come to Dhamtari and there is no other alternative accommodation available to her. The trial Court has found that the Defendant has failed to demolish these facts. All the Plaintiff/landlady''s witnesses have denied the version of the Defendant''s witnesses that the house situated at Baniapara is of Plaintiff/landlady. They have stated that the partition of the house has taken place and Bharat, brother of Lakhanlal resides there. Section 23-D is pertinent and quoted below:

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 procedding to which this Chapter applies, follow as far as procticable, the practice and procedure of a Court of small causes including the recording of evidence under Provincial 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 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 23-A is bona fide.

(Emphasis supplied)

The requirements of the person within the categories mentioned in Clause (a) or Clause (b) as the case may be of Section 23-A of the Act shall be presumed to be bonafide, unless the contrary is proved. Counsel for the Respondent also brought to the notice of the Court a decision of the Hon''ble Supreme Court in the case of R.C. Tamrakar and Another Vs. Nidi Lekha, wherein it was observed that the landlord is best judge of his residential requirement. In that case, the son of the landlady was a doctor and constructed his own house, the landlady wanted to stay by herself in suit premises because of her health condition and because climate conditions of place suited her, it was held that the landlady cannot be compelled to reside with her son and the tenant was liable to be evicted and even the fact that suit premises was required of accommodation of family member of tenant cannot be taken into consideration. This case applies with full force here and the need in this case is like one and as such no infirmity in eviction order. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, the Hon''ble Court has held that the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. The Hon''ble Supreme Court has further considered bona fide requirement of landlord recently in Joginder Pal Vs. Naval Kishore Behal, and the principles underlying thereunder have been considered in the present case by this Court.

Another question, which arises for consideration is regarding payment of rent. The eviction order was passed on 12-8-1998. Thereafter revision was filed before High Court and the matter came up for hearing on 9-10-1998 and it was directed that the eviction order shall remain stayed if the applicant deposits all arrears of rent within one month. The applicant did not deposit the rent within time and the amount was deposited on 8-8-2002. In R.C. Tamrakar and Another Vs. Nidi Lekha, , wherein the tenant did not deposit the arrears of rent either prior to filing of the suit or during its pendency before the Trial Court and eviction decree was passed by the trial Court, the Hon''ble Supreme Court has held that mere depositing amount in Court without filing application for extension of time for payment of all arrears of rent due, is not in compliance with requirement of Section 13(1) and protection u/s 13(5) is not available and the tenant can be treated as defaulter and liable to be evicted. Learned Counsel for the Respondent also relied on a decision of the Hon''ble Supreme Court in the case of Ouseph Mathai and Others Vs. M. Abdul Khadir, , wherein it has been observed that there is not dispute that the Rent Control Act is a social welfare legislation meant to protect and safeguard the interests of the tenants but it does not confer unfettered powers on the tenants to remain in possession of the leased premises notwithstanding the compliance with directions of the court or the provisions of the statute. The Act is intended to protect the interest of bona fide tenants in possession. In the instant case, the tenat has not complied with the requirement of Section 13 of the M.P. Accommodation Control Act. However in spite of that, this Court has considered the case to satisfy itself on bonafide requirement.

Having heard and considered the facts and circumstances of the case and in view of the discussions made in foregoing paragraphs, the tenant has not been able to make out a case for interference in the impugned order by this Court in exercise of its Revisional jurisdiction.

At this stage, learned Counsel for the applicant prays that some time may be given to him to vacate the possession of the suit premises.

Having considered the facts and circumstances of the case, on applicant''s furnishing an undertaking within three weeks from today that he shall hand over peaceful possession to the Plaintiff/landlady till 30-11-2002 and on his paying the entire due amount, time till 30-11-2002 is given to the applicant to vacate the possession of the suit premises. If undertaking is not filed R.C.A. will be entitled to proceed as per law.

With these observations, the revision is disposed of.