Subhash Jain vs Smt. Pushpa Shrivastava

T.P. Sharma, J.—This is a civil revision challenging legality and propriety of the order dated 5-10-2007 passed by the Rent Controlling Authority, Raipur in Case No. 08-90(8) year 2004-05, whereby learned Rent Controlling Authority has passed the order of eviction u/s 23A of the Chhattisgarh Accommodation Control Act, 1961 (for short ''the Act'') on the ground of bona fide need of the non-applicant.

Order is challenged on the ground that learned Rent Controlling Authority has illegally rejected the amendment application of the applicant and passed the order of eviction without any bona fide need of the non-applicant and has exceeded the jurisdiction vested on it.

I have heard learned Counsel for the parties, perused the impugned order and record of the Court below.

Undisputed facts of the case are that house No. 26/1001 situated at Raja Talab, Raipur was originally owned by the husband of the non-applicant. The non-applicant is presently working at Durg. Husband of the non-applicant died in the year 1986 and after the death of her husband she was appointed as L.D.C. on compassionate basis. The present applicant was tenant of deceased Mahesh Shrivastava, husband of the non-applicant, and the applicant is continuing in the suit premises as tenant. Application for eviction u/s 23A of the Act was filed by the non-applicant before the Rent Controlling Authority on the ground that the non-applicant is an old lady aged about 56 years, she is advised by the doctor not to use stairs, she is ill and after her retirement, she wants to reside in the suit accommodation which is near to her other relatives. By filing reply, the present applicant opposed the allegations of the non-applicant and specifically alleged that there is no bona fide need for residence of the non-applicant who is at present residing at Durg in Government accommodation and only to harass the applicant, she has filed the application for eviction. It was also alleged by the applicant that the amendment application filed on behalf of the applicant was illegally dismissed by the Rent Controlling Authority and the Rent Controlling Authority caused serious prejudice to the applicant. After affording opportunity of hearing to the parties, learned Rent Controlling Authority has passed the order of eviction on the ground of bona fide need of the non-applicant, vide the order impugned.

Learned Counsel for the applicant argued that the present non-applicant is not landlord of the suit premises and by family arrangement she has relinquished her share and her son is landlord, therefore, the application for eviction in the present form is not maintainable. The present applicant has filed application for amendment before the Court below for bringing new additional facts on record, but the same was illegally dismissed by the Rent Controlling Authority which has caused serious prejudice to the applicant. The non-applicant has not filed any document or has not adduced any evidence to show that she is not in a position to reside in first floor and she has also failed to adduce evidence that no alternate vacant accommodation is available to her to satisfy her bona fide need. Learned Counsel placed reliance in the matter of Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., in which it has been held by the Apex Court that the Court has a wide power and unfettered discretion to allow amendment of pleadings in such manner and on such terms as it appears to Court to be just and proper. Learned Counsel further placed reliance in the matter of Bollepanda P. Poonacha and Another Vs. K.M. Madapa, in which it has been held by the Apex Court that the Court has power to permit the parties to take additional pleas by way of amendment.

On the other hand, the revision is opposed by learned Counsel for the non-applicant and it is argued that the present non-applicant has proved her bona fide need, she is an old lady and is about to retire shortly, she is ill and not in a position to reside in first floor comfortably. The non-applicant is not having any alternate vacant accommodation in Raipur city. She is entitled for accommodation of her choice and comfort. Learned Counsel placed reliance in the matter of Goverdhan Das Agrawal v. Chandra Kishore Verma 2003(11) MPACJ 394 in which it has been held by the M.P. High Court that if landlord after retirement wants to live in his house comfortably with his family then same is bona fide need. Learned Counsel further placed reliance in the matters of Vinod Kumar v. Smt. Pushpalata 2002(1) MPACJ 307, Sabir Bhai v. Shabbir Mohammad 1998 MPACJ 88 and Noor Jahan (Smt.) v. Abdul Quadar 1991 MPACJ 318 in which the M.P. High Court has held that landlord is the best Judge of his requirement, he has got a complete freedom in this matter. Learned Counsel also placed reliance in the matter of Smt. Tahera Bi v. Smt. Mehmooda Khanam 2000 MPACJ 316 in which it has been held by the M.P. High Court that it is legislative intention that the landlord must get possession of the accommodation back when it is required by her own business otherwise it will be a self-defeating exercise to achieve the goal of socio-economic justice. Learned Counsel further placed reliance in the matter of Ranjit Narayan Haksar v. Surendra Verma 1999 MPACJ 424 in which it has been held by the M.P. High Court that eviction cannot be denied applying a hyper technical view and bona fide requirement should be decided applying objective tests that the need is genuine and reasonable.

In the instant case during the pendency of petition before the Rent Controlling Authority, the present applicant has filed amendment application to amend his written statement on the ground that during the pendency of the petition the applicant came to know that under family arrangement and partition the suit accommodation was allotted to son of the non-applicant Manish Shrivastava and Manish Shrivastava is receiving rent from the applicant, therefore, the present non-applicant is not the land lady of the said suit accommodation and she is not entitled for any relief u/s 23A of the Act, but they said amendment application was rejected by the Rent Controlling Authority.

In the matter of Bollepanda (supra) the Apex Court while dealing with the question of permissibility of amendment has held that the Court has wide discretion to allow the amendment to elaborate the defence or to take additional pleas. While dealing with the same question in the matter of Baldev (supra) the Apex Court has held that wider and unfettered discretion has been conferred on the Court to allow amendment of pleadings, in such manner and on such terms as it appears to Court to be just and proper. The Apex Court has also held that after amendment of CPC for limiting the scope of amendment, commencement of trial as used in proviso to Order 6 Rule 17 of the CPC must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. Para 17 of the said judgment reads thus,

Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the CPC must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings.

It is not disputed that the Court or authority has ample power to permit the party to amend the pleading, but the parties are required to show their bona fides and to show that the alleged amendment is necessary for just decision of the suit and parties are also required to pray for amendment of substantive fact.

In this case, after rejection of the application for amendment the applicant has not challenged the order before higher Court. It reveals from the application for proposed amendment that the applicant has not mentioned as to when he came to know about the fact, why he has started paying rent to other person when the petition for eviction is pending, who has demanded rent and on what basis. It appears from the proposed amendment that the entire proposed amendment was baseless and only with a view to harass the party and delay the proceeding the applicant had filed the amendment application without any substantive facts and material which was rightly rejected by the Rent Controlling Authority.

As regards bona fide need, as held in different pronouncements of the M.P. High Court and settled law, the Plaintiff is the best Judge to decide in what manner he will live and which one would be the best and comfortable accommodation for him. While deciding same question, the Apex Court in the matter of Mrs. Meenal Eknath Kshirsagar Vs. M/s. Traders and Agencies and another, has held that landlord is the best person to decide how and in what manner he should live. The Apex Court further held that:

As pointed but by this Court it is for the landlord to decide how and in what manner he should live and that he is the best Judge of his residential requirement, if the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the Courts to dictate him to continue to occupy such premises.

As has been held by the M.P. High Court in different decisions, certainly in deciding the bona fide need the Courts should not be hyper technical and are required to decide the question of bona fide need objectively.

In the present case, eviction was sought on the ground of bona fide need of the non-applicant on the ground of her retirement and her ill health. The non-applicant has examined herself and Smt. Sunita Shrivastava. In her evidence the non-applicant has deposed that she is residing in Government quarter at Durg since 1986 after the death of her husband along with her son, she is not having good health since last five years and she was under the treatment of Dr. R.K. Jain in J.J. Nursing Home, who has issued the certificate Ex.P-2. She has admitted in her evidence that she will live in the suit house, but she has not applied for voluntary retirement, her relatives are residing near the suit house. She has further deposed that on the ground of ill health she is not in a position to reside in first floor. In her cross-examination, she has admitted that she has not applied for her transfer from Durg to Raipur. She was not on leave on the ground of her treatment. She has also admitted in her cross-examination that the present applicant is using 1,250 sq. ft. area and the accommodation of first floor is still vacant which is 1,000 sq. ft. where some goods of the daughter of her brother-in-law are kept.

Evidence of the non-applicant reveals that she is not suffering from any serious disease for which treatment is necessary or which enable her to live in first floor. First floor comprising of 1,000 sq. ft. area is virtually lying vacant and the non-applicant has kept the articles of daughter of her brother-in-law. The non-applicant is required to show her bona fide need. But her statement and application filed before the Rent Controlling Authority reveal that she is having alternate vacant accommodation. She is residing at Durg with her son and she has not applied for any transfer or voluntary retirement. She has not adduced any material or evidence to show that she is seriously ill and is not in a position to reside in first floor. Admittedly the Plaintiff/landlord is the best person to decide how and in what manner he/she should live, but he/she is required to prove the bona fide need. Statement of the non-applicant shows that even after having alternate accommodation in same premises without any substantial ground, she has applied for eviction. The non-applicant has not been able to show that she is seriously ill and she is not in a position to reside in first floor. This shows that she only wants to evict the applicant from the suit accommodation.

Learned Rent Controlling Authority has not substantially considered statement of the non-applicant, availability of vacant accommodation at same premises and absence of evidence of her illness, and has come to a wrong conclusion that the present accommodation is required bona fidely by the non-applicant and committed illegality, inter alia, has exceed its jurisdiction.

For the foregoing reasons, the revision is allowed and the order impugned is set aside. No order as to costs.