Uttamchand Jain and Others vs Smt. Mohnibai and Others

D.R. Deshmukh, J.—Invoking the revisional jurisdiction u/s 23-E of the Chhattisgarh Accommodation Control Act (hereinafter referred to as the "Act"), the applicants herein have called in question the propriety of the order dated 11-04-2001 passed by the R.C.A., Rajnandgaon (hereinafter referred to as the R.C.A.) in case No. 3-A/1990 whereby the application u/s 23-A of the Act for eviction of the non-applicants-tenants on the grounds of bonafide requirement for non-residential purpose, was rejected.

The facts as unfolded by the record are that one Anopi Bai filed an application for eviction of the tenant u/s 23-A of the Act before the R.C.A. on the ground that the accommodation let out for non-residential purpose was required bonafide for starting her own business and she had no other reasonably suitable non residential accommodation in town in her occupation. During the pendency of the application before the R.C.A. an application for amendment was filed on 06-08-1996 whereby the bonafide requirement of Prakash Chand Jain S/o Anopi Bai for starting his business was also incorporated in the application u/s 23-A of the Act. Anopi Bai died on 20-10-1998 during the pendency of the proceedings before the R.C.A.

The non-applicant herein was served with the summons on 30.10.1995 and filed an application u/s 23-C of the Act duly supported with an affidavit for leave to contest the application. On 06.12.1995, the landlord filed reply to the said application. However, thereafter due to being continuously busy in other administrative work, the learned R.C.A. completely lost sight of the application and also the provisions contained in Section 23-C of the Act and proceeded to admit written statement filed by the non-applicant/tenant on record on 21.03.1996 without passing a specific order granting to the non-applicant/tenant leave to contest the application filed by the landlord u/s 23-A of the Act. On 11.06.1996, the R.C.A. framed an issue whether the applicants required the disputed shop bonafide. Parties adduced oral as well as documentary evidence before the R.C.A.

Shri H.S. Patel, learned Counsel for the applicants has assailed the impugned order on the ground that unless a specific order was passed by the R.C.A. granting leave to the tenant to contest the application filed under Sub-section (2) of Section 23-B of the Act, the written statement and the evidence led by the tenant could not be looked into and the R.C.A. ought to have straightaway passed an order of eviction of the tenant. It was also urged by the learned Counsel for the applicants that the Court should adopt a liberal and not a highly technical approach while appreciating the evidence led by the landlord. It was also contended that mere fact that at one point of time the landlord wanted to sell the demised premises would not by itself be sufficient to discard the evidence relating to a bonafide requirement for starting business at a subsequent point of time. Reliance was placed on Rajkumar Katalia v. Smt. Ramwati Bai 1994 (1) MPWN 146, Ranjit Naravan Haksar v. Surendra Verma 1999 (11) MPACJ 424, Smt. Tahera Bi. v. Smt. Mehmooda Khanam 2000 (1) MPACJ 316, M.P. Dongre v. Smt. Kusumlata Shukla 2002 (11) MPACJ 140, Naravan v. Hasraj Jahan Begum 2002 (11) MPACJ 242, Shri Rama Sahu v. Smt. Ashawanti 2001 (11) MPACJ 166, Ajay Silewar v. Smt. Premwati Parimal 2000 (11) MPACJ 45 , Dhannalal Vs. Kalawatibai and Others, Jhamubai v. Bhanwar lal 1998 MPACJ 445 , Harbans Singh Vs. Smt. Margrat G. Bhingardive, , Girish Chandra Chaturvedi v. Smt. Pushpa Bhopatkar and Ors. 1997 MPACJ 476 , Hemant Kumar Vs. Shankarlal and Others, . Learned Counsel for the applicants read the evidence on record in extenso in order to show that the finding recorded by the learned R.C.A. that the accommodation in question was not required bonafide by Prakash Chand for starting his business is perverse.

On the other hand, Shri P.K.C. Tiwari, learned Senior Advocate appearing on behalf of the non-applicant has contended that the tenant having filed an application under Sub-clause (1) of Section 23-C of the Act duly supported with an affidavit for leave to contest the application u/s 23-A of the Act filed by the landlord, it was the duty of the R.C.A. to pass orders u/s 23-C(2). Having failed to do so and having permitted the tenant to file written statement and thereafter framing an issue for determination, it shall be deemed that leave to contest the application was granted by R.C.A. to the non-applicants/tenants. It was further contented that maxim actus curiae neminem gravabit comes into play in such a situation and no party could be forced to suffer for the inaction of the Court or its omission to act according to the procedure established by law. It was further contended that the impugned order passed by the R.C.A. is a well reasoned order on proper appreciation of the material oral as well as documentary available on record and does not call for any interference in exercise of revisional jurisdiction. Learned Counsel for the non-applicant herein further contended that the non-applicant was running a courier service in the demised premises. The requirement of Anopi Bai had ceased to exist on her death. Anopi Bai had entered into an agreement to sell the demised premises on 06-03-1995 to the daughter of the non-applicant. Bonafide requirement of Prakash Chand Jain for starting his business in the demised premises was also not established since he was already having business of his own in Rajnandgaon.

The learned R.C.A., Rajnandgaon after considering the evidence oral as well as documentary adduced by the parties dismissed the application u/s 23-A of the Act and passed a well reasoned order, on the following grounds:

(A) Bonafide requirement of Prakash Chand Jain for starting his business in the demised accommodation was not established.

(B) The fact of the agreement to sell the demised premises to the daughter of the non-applicant by Anopi Bai on 06-03-1995 also went to show that the requirement of Prakash Chand Jain was not bonafide.

(C) The requirement for starting business by Anopi Bai being personal to her had ceased to exist on her death.

(D) Prakash Chand Jain was already running a business in Gudakhu Line, Rajnandgaon in the name of Prakash Aluminium owned by his elder brother, since expired.

Having heard learned Counsel for the parties, I have perused the record. Chapter III-A of the Chhattisgarh Accommodation Control Act contains special provision for eviction of tenants on ground of "bonafide" requirement. Section 23-A contains permissible grounds for eviction of the tenant. The present case falls under sub Clause (b) of Section 23-A. The landlord Anopi Bai had pleaded the bonafide requirement for starting business for her own as also for her major son Prakash Chand. u/s 23-J of the Act, a widow can claim eviction of tenant on the ground of bonafide requirement for starting her business or that of any of her major sons u/s 23-A of the Act.

I shall first deal with the objection raised by the learned Counsel for the applicant regarding non-compliance of Sub-section (2) of Section 23-C of the Act by the R.C.A.

Section 23-C of the Act reads as under:

23-C. Tenant not entitled to contest except under certain circumstances. - (1) The tenant on whom the summons 13 served in the form specified in the Second Schedule shall not contest the prayer for eviction from the accommodation unless he files within fifteen days from the date of service of the summons, an application supported by an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Rent Controlling Authority as hereinafter provided and in default of his appearance in pursuance of the summons or in default of his obtaining such leave, or if such leave is refused, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant. The Rent Controlling Authority shall in such a case pass an order of eviction of the tenant from the accommodation:

Provided that the Rent Controlling Authority may, for sufficient cause shown by the tenant, excuse the delay of the tenant in entering appearance or in applying for leave to defend the application for eviction and where "exparte" order has been passed, may set it aside.

(2) The Rent Controlling Authority shall, within one month of the date of receipt of application, give to the tenant, if necessary, leave to contest the application, if the application supported by an affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the accommodation on the ground specified in Section 23-A.

It is not disputed that upon service of summons the tenant filed application within 15 days duly supported with affidavit, stating the grounds on which he sought to contest the application for eviction and to obtain leave from the R.C.A. In this view of the matter, under Sub-clause (b) of Section 23-C of the Act, the R.C.A. was under an obligation to pass an order on the said application within one month of the date of receipt of the application. However, in this case, the R.C.A. since busy more in administrative work as they usually are, completely lost sight of the provision u/s 23-C of the Act. However, on 11.06.1996 while framing an issue, the R.C.A. mentioned in the order sheet that after perusing the application and reply filed by the tenant, an issue arose as to whether the applicants needed the disputed shop bonafide. This by itself reveals that the R.C.A. had applied its mind to the application u/s 23-C and found it to be a fit case to grant leave to the tenant to contest the application u/s 23-A of the Act. In the fact situation of this case, the maximactus curiae nominee gravidity meaning "an act of the court shall prejudice no man" comes into play which is founded upon justice and good sense, and affords a safe and certain guide for the administration of law. In A. Venkatasubbiah Naidu Vs. S. Challappan and Others, applying the maxim, it was held that no party can be forced to suffer for the inaction of the Court or its omissions to act according to the procedure established by law.

In the present case, the tenant filed an application u/s 23-C of the Act within the period prescribed by Sub-clause (1) of Section 23-C of the Act. The said application was duly supported with an affidavit. The R.C.A. instead of passing a specific order granting leave to the tenant to contest the application, deemed it fit to write in the order sheet that an issue arose for adjudication in the proceedings as to whether the applicants needed the suit shop bonafide. This order can safely be construed to be an order under Sub-clause (2) of Section 23-C, though passed after an expiry of one month of the date of receipt of the application in Sub-clause (1) of Section 23-C. In this view of the matter the contention of Shri H.S. Patel, learned Counsel for the applicants that the impugned order be set aside and the matter remanded to R.C.A. for reconsideration on the application u/s 23-C Sub-clause (1) of the Act filed by the tenant cannot be countenanced.

Section 23-E of the Act is as under:

23-E. Revision by High Court - (1) Notwithstanding anything contained in Section 31 or Section 32, no appeal shall lie from any order passed by the R.C.A. under this Chapter.

(2) The High Court may, at any time "suo motu" or on the application of any person aggrieved, for the purpose of satisfying itself as to the legality, propriety or correctness of any order passed by or as to the regularity of the proceedings of the R.C.A., call for and examine the record of the case pending before or disposed of by such Authority and may pass such order in revision in reference thereto as it thinks fit and save as otherwise provided by this section, in disposal of any revision under this section, the High Court shall as far as may be, exercise the same powers and follow the same procedure as it does for disposal of a revision u/s 115 of the Code of Civil Procedure, 1908 (V of 1908) as if any such proceeding of the R.C.A. is of a Court subordinate to such High Court: Provided that no powers of revision at the instance of person aggrieved shall be exercised unless an application is presented within ninety days of the date of the order sought to be revised.

Under Chapter III-A, a revision lies to the High Court u/s 23-E of the Act. Thus no appeal lies against an order passed by the R.C.A. The words "as far as may be, exercise the same powers and follow the same procedure as it does for disposal of a revision u/s 115 of the Code of Civil Procedure, 1908 (V of 1908) as if any such proceeding of the R.C. A. is of a Court subordinate to such High Court" in Sub-clause (2) of Section 23-E of the Act clearly goes to show that while exercising the power of revision against the order passed by the R.C.A. the High Court shall, as far as may be exercise the same powers and follow the same procedure as it does for disposal of revision u/s 105 of the Code of Civil Procedure.

Section 115 of the CPC provides the grounds on which an order passed by a Court subordinate to the High Court may be set aside. An order passed by such subordinate Court shall be liable to be interfered with by the High Court in exercise of revisional jurisdiction where it appears that the subordinate Court:

(a) has exercised a jurisdiction not vested in it by law, or

(b) has failed to exercise a jurisdiction so vested, or

(c) has acted in the exercise of its jurisdiction illegally or with material irregularity.

Thus, merely because a different view may be taken on the basis of evidence led before the R.C.A., an order passed u/s 23-A by the R.C.A. shall not be liable to be interfered with in revision unless it is shown that the view taken by the subordinate Court is perverse or that any of the three conditions mentioned above exist. I am fortified in my view by a decision rendered in Parivar Sewa Sanstha v. Padmawati Dixit 2006 (2) CGLJ 280 of this Court which reads as under:

...The High Court exercising powers u/s 23-E is entitled to interfere with the findings recorded by the Rent Controlling Authority when the court finds that the Rent Controlling Authority has misread the evidence, ignored to consider the evidence and thereby recorded a perverse finding or has committed illegality by misquoting law or misrepresented the law applicable to the case in question (Please see Dhannalal Vs. Kalawatibai and Others, . Hence, u/s 23-E, this Court is entitled to examine the perversity of the finding on the grounds referred to above and if it appears to the Court that the findings are indeed perverse and the order is not based on evidence on record, the same can be set aside in the said revisional jurisdiction.

So far as the application filed by Anopi Bai on grounds of bonafide requirement for starting her own business is concerned, learned Counsel for the applicants conceded that upon death of Anopi Bai during pendency of the proceedings before the R.C.A., the bonafide need of the demised accommodation for starting business by Anopi Bai had come to an end. Thus the only point that requires consideration in this revision is whether the order passed by R.C.A. rejecting the application on grounds mentioned in Sub-clause (b) of Section 23-A is perverse or satisfies any of the three conditions enumerated u/s 115 Code of Civil Procedure.

In an application Sub-clause (b) of Section 23-A of the Act the landlord is required to specifically plead the nature of business which he or she or any of his/her major sons or unmarried daughters intend to start or continue in the demised accommodation. In the present case, it is noticed that neither in the original application filed by Anopi Bai nor in the amendment sought on 6.8.1996, it has been pleaded as to for what type of business, the accommodation was required bonafide by Prakash Chand. The evidence led by Prakash Chand is also far from convincing and does not inspire confidence. In his examination-in-chief, he stated that he used to sit as a servant in Prakash Aluminium and since last two years he has left the job. However in cross-examination, he has clearly resiled from his earlier statement and deposed that he was never employed in Prakash Aluminium. He also denied that due to quarrel with Naresh Kumar, he was not working in Prakash Aluminium since two years. In cross-examination, he has further admitted that he was carrying on his business of utensils in Prakash Aluminium. He has further admitted that his business of manufacture of utensils was in Basantpur and the utensils manufactured in Basantpur were sold in Prakash Aluminum. Thus the statement of Prakash Chand in cross-examination completely belies his testimony in examination-in-chief. It is also to be noticed that in cross-examination, Prakash Chand admitted that he had suffered heavy loss in the business of utensils and had therefore closed down the earlier business in the name of Jain Metals. Under these circumstances, the need for starting business of utensils for Prakash Chand cannot be said to be bonafide.

In this fact situation, the agreement dated 6.3.1995 to sell the suit accommodation by Anopi Bai to the daughter of the non-applicant becomes relevant. It is not disputed that the shop in question is only 82 sq. ft. in area. It is therefore, difficult to believe that leaving his own, business of manufacture of utensils in Basantpur, Prakash Chand would require the suit accommodation bonafide for carrying his business. In any case, the fact of the nature of business for which bonafide requirement was shown to exist, not having been pleaded, the evidence of Prakash Chand could not be relied on. It appears that Prakash Chand continued to have his business of manufacture of utensils in Basantpur as admitted by him as also his business in Prakash Aluminium at Rajnandgaon. The testimony of Praveen Bhai, the remaining witness for the applicants herein is also unreliable. His testimony that Prakash Chand was not having any business and was not employed anywhere and used to only loiter here and there and had not worked anywhere is, completely belied by the testimony of Prakash Chand himself. No other evidence was led by the applicants.

Having thus considered the evidence led by the applicants herein before the R.C.A. I am of the considered opinion that the impugned order rejecting the application u/s 23-A of the Act is well merited and does not fall within any of the parameters envisaged u/s 115 of the Code of Civil Procedure. No interference is called in exercise of the revisional jurisdiction by this Court.

This civil revision being devoid of merit is dismissed.