Smt. Vimla Bansal and Another vs Om Prakash Kalani

P.K. Jaiswal, J.

This revision petition has been filed by the applicants against the order dated 05.08.03 passed by the Rent Controlling Authority, Gwalior (hereinafter for short referred to as "RCA") in Case No. 10/98-99/90-7).

The applicant No. l, who is widow of Om Prakash Bansal, applied for eviction of the suit accommodation in possession of non-applicant Om Prakash Kalani on the ground of bonafide need on 26.12.98 for starting General Store and Hosiery business for his son Ravi Bansal/applicant no.2, who is unemployed and for that purpose she has no other alternative suitable accommodation in the greater Gwalior. The application was filed u/s 23-J of the M.R Accommodation Control Act (for short referred to as "Act") before the R.C.A. The applicant No. l in Para 1 of the application averred that she is owner of the house and on ground floor of the said hose, one shop was given on rent to non-applicant on 01.10.1961. In para 3 of the application it is averred that the husband of applicant No. l died on 11.07.85. She and her family members are residing in the upper floors of the house. Both sons are unemployed and she has no other source of income except the rent, which she is getting from her tenants. She issued registered notice on 10.11.98, which was received by the non-applicant No. l on 12.11.98 and inspite of notice, he failed to handover the possession and, therefore, she filed this application for eviction on the ground of bonafide need.

In the reply, the non-applicant contended that the applicants have not given the full particulars of the house. The first floor of the house was given on rent to Sahni Photographer Studio for non-residential purpose, which was vacated and the said vacant premise, which is in possession of the applicants, are available for the need of the applicants. He denied the claim of the applicants. He denied the tenancy and rate of the rent of the suit shop.

The RCA after appreciating the evidence on record found that as per sale-deed Annexure P/l, the applicant proved that she is landlady of the house and held that the applicant is landlord of the suit shop. As per Ex.P/4, the rent note was executed by the non-applicant. The non-applicant in his cross-examination admitted that he is tenant of the applicant. The RCA also held that the rent note Ex.P/4 is of dated 01.10.77 and husband of the applicant No. l was died on 11.07.85, which is evident from the death certificate dated 23.08.85 filed by the applicant and, therefore, u/s 23-J of the Act, she comes under the special category and entitled to file an application before the RCA for ejectment u/s 23-J of the Act.

The RCA held that the applicant is having possession of first floor, which was vacated by M/s Sahni Photo Studio Centre and handed over the possession and, therefore, she is having alternative suitable accommodation, which is on the first floor, much bigger than the suit premises. The RCA also gave a finding that applicant no.2 Ravi Bansal has no knowledge about the Hosiery business and on the basis of the evidence of the non-applicant, the RCA came to the conclusion that the need of the applicants is not genuine and non-applicant in his cross examination stated about the other non residential accommodation in possession of the applicants and, therefore, the applicant failed to prove that she has no other alternative suitable accommodation in greater Gwalior. In respect of bonafide need, the RCA held that R.W. 1 Smt. Vimla Bansal in Para 18 of her cross examination admitted that she has not given the full particulars of the house and she also in Para 19 of her cross examination admitted that earlier she gave first floor to Sahni Photo Studio on rent, which was vacated and she is in possession of the said premises. With the above finding, the RCA held that the applicants failed to prove the bonafide need and rejected the application by the impugned order dated 05.08.03.

Learned counsel for the applicants Shri V.K. Bharadwaj has submitted that the applicants in Para 1 of the application gave full particulars in respect of the house in which the suit shop is situated. She also averred that in upper floors of the house she is residing alongwith her family members. He drew my attention to the evidence of Smt. Vimla Bansal (P.W.1), who in para 1 of her statement stated that except house in which the suit shop is situated, she has no house in the Gwalior City. She also averred that her son applicant No. 2 is working in Hosiery shop owned by Harichandra and she wants the suit premises for starting General Stores and Hosiery business of her son. She in para 1 also stated that one shop of the suit house is rented to the non-applicant. In para 16, she stated that in 1993 rent was Rs.900/- and on 05.11.97, the rent was enhanced to Rs.1190.25 Paise and the non-applicant paid the rent at the said rate upto April 1998 and from May 1998 he started paying the rent at the rate of Rs. 1368.60Paise per month. In para 17, she has stated that one more shop which is situated in the ground floor, rented to R.K. Studio by her husband and her husband died on 07.11.85. In Paras 18 and 19, she stated that alongwith the application, she did not give full particulars of her house nor she filed the complete map of the house in which on the ground floor two shops are lying; one was given on rent to the non-applicant and another shop is occupied by M/s R.K. Studio. First floor of the house consisting of three rooms was given on rent to Sahni Studio, who vacated the suit premises some 12 years back. Her evidence was recorded on 24.06.2000 and M/s. Sahni Studio vacated the first floor somewhere in 1988. She is using the first floor for residential purposes. In para 21 of her statement she stated that Sahni Studio after vacating the premises of the first floor handed over the possession to her and till today she is using the said premises for residential purposes. P.W.2 Ravi Bansal supported the said averment and in para 4 stated they are using the first floor as residential purposes which was vacated by the Sahni Studio.

Non-appljcant Om Prakash Kalani (D.W.1) failed to give any particulars about the other suitable alternative accommodation which the applicant is having in Gwalior Municipal area. Except the suit house, in which the suit shop is situated, the applicants are not having any other premises. No details regarding the name of other place, area is situated have been given by the non-applicant nor the non-applicant in his statement stated that the applicants are not using the first floor, which was vacated by Sahni Studio for his residential purpose nor he stated that the said first floor portion was given by the applicant on rent to others and therefore, the finding of RCA that applicant is having other suitable alternative accommodation for their needs, is incorrect, perverse and contrary to the record.

It is nowhere stated by the applicants either in the pleadings or in their statement that they are having other alternative suitable accommodation for starting Hosiery and General Store business. Applicant No. l Smt. Vimla Bansal (P.W.I) and applicant No. 2 Ravi Bansal (P.W.2) in their statement very specifically stated that they have no other alternative suitable accommodation except the suit shop and from the pleadings it is proved that the applicants using upper floors of the house for residential purposes, thus, there is nothing to disbelieve that there is no suitable alternative accommodation in which possession of the applicants is available in the Gwalior City. If it was a case of the non-applicant that any other portion is vacant that ought to have been put to landlord in cross examination. The non-applicant from his evidence failed to prove that the applicants are having other suitable accommodation and applicants proved that their need is genuine and satisfied requirement of Section 23 J of the act that they had no other reasonable suitable non residential accommodation of their own which they are in occupation in Gwalior City.

The Apex Court in the case of Prem Narayan Barchhiha v. Hakimuddin Saifi reported in 1999 (2) JLJ, 260 has held that the landlord ought to have disclosed the residential accommodation in his possession and show that it is not reasonably suitable for non-residential purpose when he is seeking eviction of the tenant from accommodation let for non-residential purposes.

The learned counsel for the applicants submitted that the finding recorded by the RCA is contrary to the evidence on record and that her need is genuine and bonafide by pleading oral evidence and she also pleaded that in the ground floor of the house there are only two shops; one is in possession of the non-applicant and other is in possession of R.K. Studio and the applicants are using upper floors for their residential purposes and including the first floor which was vacated by M/s Sahni Photo Studio in the year 1988.

On the other hand, the learned counsel for the non-applicant submits that the plaintiff is required to plead the alternative accommodation and non-suitability thereof. The applicants have not given the full details of the house in which the suit shop is situated and, therefore, the RCA has not committed any error in holding that the applicants failed to prove their bona fide need and the need is not genuine and for starting business of her son, the applicant No. l is having other alternative suitable accommodation in greater Gwalior. Learned counsel for the non-applicant also submitted that the finding recorded by the RCA is a finding of fact and the landlord has filed this revision u/s 23 E of the Act and revisional jurisdiction of this Court is very limited and this Court can interfere with the finding only to prevent miscarriage of justice and the case in hand does not come within the said parameter. It is lastly submitted that in examining the correctness of finding, this Court would not act as Court of appeal and reappreciate the evidence to come to its own conclusion. In support of the said arguments, he placed reliance on the decision of this Court in the case of President, Transport Co-operative Bank and Others Vs. Smt. Chandraprabha, and another decision in the case of Tikamchand v. Prakash Chandra 1991 JLJ 642.

It is settled that the scope of Section 23 E of the Act is less than the appellate powers and more than the revisional powers u/s 115 of C.P.C. On perusal of the facts an evidence available on record, I find that the RCA has committed and error in holding that the applicants failed to prove their bonafide need and also committed error in holding that the full particulars of the house, in which the suit shop is situated, have not been given by the applicants and also erred on the basis of the bare pleadings of the non-applicant that she is having other suitable house in the Gwalior City and held that the applicants failed to prove their need and they are not having any other suitable accommodation for starting business of Hosiery and General Store. The applicants by their evidence established their need with regard to the suit accommodation. On perusal of the evidence on record, I am satisfied that from the statements of Smt. Vimla Bansal (P.W.1) and Ravi Bansal (P.W.2), it is established that the applicant No. l needed the suit shop for starting General store and Hosiery business for his son Ravi Bansal applicant No. 2. From the statements of the aforesaid witnesses, it is also established that the applicants are not possessed of any suitable accommodation of their own at Gwalior to fulfil the aforesaid need. It is also established from the evidence that the alternative non-residential accommodation, which is situated in the first floor of the house, got vacated in the year 1988 and they are still using for residential purposes and there are only two suit shops; one is the suit shop and the another is in possession of the other tenant, namely, M/s R.K. Studio and, therefore, except the suit shop no other suitable accommodation is available for the applicants for starting the General Store and Hosiery business.

The Apex Court in the case of Akhileshwar Kumar and Others Vs. Mustaqim and Others, , has observed as follows:

Once it has been proved by a landlord that the suit accommodation is required bona fide by him for his own purpose and such satisfaction withstands the test of objective assessment by the Court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The court cannot thrust its own choice upon the needy. Of course, the choice has to be exercised reasonably and not whimsically.

As a result of the aforesaid discussion and in the light of the facts of the case and also the law applicable, I am of the considered opinion that the RCA has committed and error in recording the finding on issues Nos. 5 and 6 against the applicants rejecting their claim for eviction of the non-applicant from the suit shop. The finding of the Courts below in the aforesaid issues being contrary to law and facts deserves to be quashed. Consequently, this revision petition succeeds and accordingly the impugned order of the RCA rejecting the prayer of the applicants for eviction of the non-applicant is set aside. The applications filed by the applications u/s 23 J of the Act is allowed directing the non-applicant to deliver the vacant possession of the suit shop to the applicants within a period of three months from today. The order of eviction shall be enforceable if the applicants comply with the provisions of Section 23 J of the act. The applicants are also entitled for costs of the revision. Counsel''s fee Rs.2,000/-, if precertified. Schedule of the costs be drawn up accordingly.