Andhra HC (Pre-Telangana)
Manik Halder S/O Rishikant Halder vs Polamraju Lavanya W/O P.L.N. Prasad on 15 December, 2004
Equivalent citations: 2005(2)ALD204, 2005(2)ALT334, 2005 A I H C 2897, (2005) 1 RENCR 407, (2005) 1 RENTLR 716, (2005) 2 ANDHLD 204, (2005) 2 ANDH LT 334
ORDER S.R.K. Prasad, J.
1. The tenant has preferred this revision against the judgment and decree dated 30.7.2003 in R.C.A.No.9 of 2001 on the file of the Principal Senior Civil Judge-cum-Rent Control Appellate Authority, Ongole, ordering eviction.
2. The facts that are required for consideration can be stated as follows: The respondent, who is landlady, has sought eviction of the revision petitioner being the tenant from the schedule premises on two grounds, namely, wilful default in payment of rents and bona fide requirement for personal use. The same is resisted by the tenant stating that she was accepting the rents sent by money orders and he had not committed any wilful default. It is also contended by the tenant that several shops in possession of the landlady fell vacant and she did not commence any business. She does not require the premises bona fide for occupation. It is also contended that she has not disclosed the nature of business, which she proposes to commence. After enquiry the learned Rent Controller, Ongole negatived both contentions of the petitioner and dismissed the eviction application in R.C.C.No.8 of 2000. Thereupon, the matter is carried by the landlady in appeal before the Principal Senior Civil Judge, Ongole. The Appellate Authority allowed R.C.A.No.9 of 2001 accepting the contentions of the landlady on the ground of bona fide personal use while confirming the finding relating to wilful default arrived at by the Rent Controller. Thereupon, he has ordered eviction of the tenant. Aggrieved by the same, the tenant has preferred this revision.
3. The jurisdiction of the revisional court has been clearly laid down by the Apex Court in Shiv Sarup Gupta v. Mahesh Chand Gupta, while determining the bona fide need or genuine need. The relevant portion at paras 11, 12, 13, 14 and 22 read as follows:
"11. Section 25-B of Delhi Rent Control Act, 1958 finding its place in Chapter III-A of the Act was inserted into the body of the main Act by Act No. 18 of 1976 with effect from 1-12-1975. It provides for a special procedure to be followed for the disposal of applications for eviction on the ground of bona fide need. Obviously, this ground for eviction of the tenant has been treated on a footing different from the one on which other grounds for eviction of the tenant stand. Section 25-B is a self-contained provision in the sense that remedy against an order passed by the Rent Controller thereunder is also provided by that provision itself. Sub-section (8) provides that no appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in Section 25-B; provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law (or not), call for the records of the case and pass such order in respect thereto as it thinks fit'. The phraseology of the provision as reproduced hereinbefore provides an interesting reading placed in juxtaposition with the phraseology employed by the Legislature in drafting Section 115 of the Code of Civil Procedure. Under the latter provision the exercise of revisional jurisdiction of the High Court is circumscribed by the subordinate Court having committed one of the three errors, namely (i) having exercised jurisdiction not vested in it by law, or (ii) having failed to exercise a jurisdiction so vested, or (iii) having exercised its jurisdiction with illegality or material irregularity. Under the proviso to sub-section (8) of Section 25-B, the expression governing the exercise of revisional jurisdiction by the High Court is for the purpose of satisfying if an order made by the Controller is according to law'. The revisional jurisdiction exercisable by the High Court under Section 25-B (8) is not so limited as is under Section 115, CPC nor so wide as that of an Appellate Court. The High Court cannot enter into appreciation or re- appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a Court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of 'whether it is according to law'. For that limited purpose it may enter into reappraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached that conclusion on the material available. Ignoring the weight of evidence, proceeding on wrong premise of law or deriving such conclusion from the established facts as betray the lack of reason and/or objectivity would render the finding of the Controller 'not according to law' calling for an interference under proviso to sub-section (8) of Section 25-B of the Act. A judgment leading to miscarriage of justice is not a judgment according to law. [See : Sarla Ahuja v. United India Insurance Co. Ltd., and Ram Narain Arora v. Asha Rani, ]
12. A perusal of Section 14 of the Act shows that the law has imposed restrictions on the recovery of possession of any premises by landlord from a tenant notwithstanding any law or contract to the contrary. However, an order for recovery of possession is permissible on one or more of the specified grounds. One such ground is the premises let for residential purposes being required bona fide by the landlord for occupation as residence for himself or for any member of his family dependent on him. What is a bona fide requirement is not defined in the Act. The words 'need' and 'require' both denote a certain degree of want with a thrust within demanding fulfilment. 'Need' or 'requirement' qualified by word 'bona fide' or 'genuine' preceding as an adjective - is an expression often used in Rent Control Laws. 'Bona fide or genuine need' of the landlord or that the landlord 'genuinely requires' or 'requires bona fide' an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by Rent Control legislation draftsman. The two expressions are interchangeable in practise and carry the same meaning.
13. Chambers 20th Century Dictionary defines bona fide to mean 'in good faith : genuine'. The word 'genuine' means 'natural : not spurious : real : pure : sincere'. In Law Dictionary, Mozley and Whitley define bona fide to mean 'good faith, without fraud or deceit'. Thus the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bona fide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself-whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bona fides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court.
The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against.
14. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of clause (e) of sub-section (1) of Section 14, which speaks of non-availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available than the Court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the Court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant factors. While considering the totality of the circumstances, the Court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come.
22. Reverting back to the case at hand, the landlord has been living on the ground floor of the Defence Colony house. It was conceded at the Bar that as on the day the family of the landlord consists of the landlord himself (a practising doctor), his son (again a practising doctor), the daughter-in-law and two grand children who are gradually growing in their age. Looking at the size of the family, availability of three bed rooms in the premises in which the landlord may live, is a requirement which is natural and consistent with the sense of decency - not to talk of comfort and convenience. There is nothing unreasonable in a family with two practising doctors as members thereof needing a room or two or a room with a veranda to be used as a residential-clinic divided into a consultation room and a waiting place for the patients. A drawing room, a kitchen, a living room and a garage are bare necessities for a comfortable living. The landlord has been living in Defence Colony locality for more than 35 years. The first floor which was let out to the tenant in the year 1978 as being an accommodation surplus with the landlord has with the lapse of time become a necessity for occupation by the landlord and his family members. More than ten years by now have been lost in litigation. The death of the wife of the landlord, and the death of the landlord's mother-in-law, are events which have hardly any bearing on the case of felt need of the landlord. The need as pleaded and proved by the landlord is undoubtedly natural, sincere and honest and hence a bona fide need. There is no material available on record to doubt the genuineness of such need. It continues to subsist in spite of the two deaths. It is not the case of the tenant-appellant that while seeking eviction of the tenant the landlord is moved by any ulterior motive or is guided by some other thing in his mind. It will be most unreasonable to suggest that the landlord may continue to live on the ground floor of the Defence Colony house and some members of the family may move to Sarvodaya Enclave House if the whole family cannot be conveniently and comfortably accommodated as one unit in the Defence Colony house. It would be equally unreasonable to suggest that the entire family must shift to Sarvodaya Enclave house, which is admittedly situated at a distance of about 7-8 kilometers from Defence Colony. The landlord and his family are used to living in Defence Colony where they have developed friends and acquaintances, also familiarity with the neighbourhood and the environment. The patients usually visiting or likely to visit the residential clinic know where there doctor would be available. Shri Arun Jaitley, learned senior counsel for the respondent, has very rightly submitted that it could not have been the intendment of the Rent Control Law to compel the landlord in such facts and circumstances to shift to a different house and locality so as to permit the tenant to continue to live in the tenanted premises. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself tightly into lesser premises protecting the tenant's occupancy. In addition, we find that on the date of the initiation of the proceedings, Sarvodaya Enclave property was belonging to the wife of the landlord or to one of his sons resident abroad and was in actual occupation of a tenant. On the death of the wife of the landlord if any one of the two Wills (one which was in existence at the time of initiation of the proceedings or the one, which appears to have been subsequently executed by the landlords' wife and filed before the High Court) was to be given effect to then the ownership in the property has passed on to one son or jointly to four sons of the landlord. If the Will itself is excluded from consideration as not proved then also the ownership in the property has passed on to the four sons jointly. Sarvodaya Enclave property does not belong to the landlord and is not available for his occupation as an owner. To these facts the applicability of law laid down in Prativa Devi's case (supra) is squarely attracted. In our opinion, the availability of Sarvodaya Enclave property is not of any relevance or germane to determining the need and the bona fides of the need of the landlord. We are not therefore inclined to attach any weight to the application for additional evidence filed by the landlord before the High Court though we agree with the learned counsel for the tenant-appellant that the High Court was not justified in taking into consideration the contents of the Will without formally admitting the same in evidence and affording the parties opportunity of adducing evidence in proof and disproof thereof."
As long back as in 1988 the Apex Court in Ram Dass v. Ishwar Chander, has given guidelines for judging the revisions arising from the rent control matters. It has also given interpretation to the words legality and propriety as well as bona fide requirement and reasonable requirement etc. The relevant portion at paras 6 and 7 read as follows:
"6. Upon a consideration of the matter, we are of the view that both the contentions urged in support of the appeal are unsubstantial.
It is, no doubt, true that the question whether the requirement of the landlords is bona fide or not is essentially one of fact, notwithstanding the circumstance that a, finding of fact in that behalf is a secondary and inferential fact drawn from other primary or perceptive ones. All conclusions drawn from primary facts are not necessarily questions of law. They can be, and quite often are, pure questions of fact. The question as to bona fide requirement is one such. Statutes enacted to afford protection to tenants from eviction on the basis of contractual rights of the parties make the resumption of possession by the landlord subject to the satisfaction of certain statutory conditions. One of them is the bona fide requirement of the landlord, variously described in the statutes as "bona fide requirement", "reasonable requirement", "bona fide and reasonable requirement" or, as in the case of the present statute, merely referred to as "landlord requires for his own use". But the essential idea basic to all such cases is that the need of the landlord should be genuine and honest, conceived in good faith; and that, further, the court must also consider it reasonable to gratify that need. Landlord's desire for possession, however honest it might otherwise be, has inevitably a subjective element in it and that, that desire to become a "requirement" in law must have the objective element of a "need". It must also be such that the court considers it reasonable and, therefore, eligible to be gratified. In doing so, the court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down.
7. On the first contention that the revisional powers do not extend to interference with and upsetting of findings of fact, it needs to be observed that, subject to the well-known limitations inherent in all revisional. jurisdictions, the matter essentially turns on the language of the statute investing the jurisdiction. The decisions relied upon by Shri Harbans Lal, deal, in the first case, with the limitations on the scope of interference with findings of fact in second appeals and in the second, with the limitation on the revisional. powers where the words in the statute limit it to the examination whether or not the order under revision is "according to law." The scope of the revisional powers of the High Court, where the High Court is required to be satisfied that the decision is "according to law" is considered by Beaumont C.J. in Bell and Co. Ltd. v. Waman Hemraj, AIR 1938 Bom 223 a case referred to with approval by this court in Hari Shankar v. Girdhari Lal Chowdhury, AIR 1963 SC 698. But here, S. 15(5) of the Act enables the High Court to satisfy itself as to the "legality and propriety" of the order under revision, which is, quite obviously, a much wider jurisdiction. That jurisdiction enables the court of revision, in appropriate cases, to examine the correctness of the findings of facts also, though the revisional Court is not "a second court of first appeal" (See Dattonpant Gopalvarao Devakate v. Vithalrao Marutirao, . Referring to the nature and scope of the revisional jurisdiction and the limitations inherent in the concept of a 'revision' this Court in Rajalakshmi Dyeing Works v. Rangaswamy Chettiar, observed :
".....2. "Appeal" and "revision" are expressions of common usage in Indian statutes and the distinction between "appellate jurisdiction" and "revisional jurisdiction" is well known though not well defined. Ordinarily, appellate jurisdiction involves a rehearing, as it were, on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeals under the Code of Civil Procedure and under some Rent Acts in some States. Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may some times be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction........... Revisional jurisdiction as ordinarily understood with reference to our statutes is always included in appellate jurisdiction but not vice versa. There are general observations. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute ..........."
The criticism of Sri Harbans Lal that it was impermissible for the High Court in its revisional jurisdiction to interfere with the findings of fact recorded by the appellate authority, however erroneous they be, is not, having regard to the language in which the revisional power is couched, tenable. In an appropriate case, the High Court can reappraise the evidence if the findings of the appellate court are found to be infirm in law."
4. It is clear from the principles laid down by the Apex Court in the aforesaid decisions that the revisional jurisdiction has to be considered in each case with reference to the language employed by the statute. Section 22 of A.P. Buildings (Lease, Rent and Eviction) Control Act has clearly confers the power to judge the legality, regularity and propriety of the order under revision. What has to be judged in this case is the bona fide nature of seeking the premises for personal use, namely, for running business and it has to be considered. The Apex Court has already stated the essential idea basic to all such cases is that the need of the landlord should be genuine and honest, conceived in good faith and the court must also consider it reasonable to gratify that need. Landlord's desire for possession, however, honest it might otherwise be, has inevitably a subjective element in it and that desire to become a requirement in law must have the objective element of a need. It must also be such that the court considers it reasonable and, therefore, eligible to be gratified. In doing so, the court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down.
5. Concurrent findings have been arrived at regarding wilful default and the landlady has not challenged the same. The tenant has only challenged the finding relating to the bona fide requirement urged by the landlady before this Court.
6. It is mainly contended by the learned counsel appearing for the revision petitioner that several shops had fallen vacant and she did not commence business by then. It is also urged that her husband is a diabetic patient and died and she is not capable of running business. Reliance is also placed on the alleged admission made by P.W.1 regarding the vacation of shops etc.
7. The learned counsel appearing for the respondent has contended that there are no such admissions and they are only suggestions and the Rent Controller has misread it and it is the appellate court that corrected it and ultimately arrived at the conclusion.
8. I have perused the depositions. There are no such admissions stating that premises have fallen vacant and she has not commenced the business. The evidence is crystal clear. The only suggestion made is that those people were inducted into shops a few years back. That does not mean that there are admissions made on the part of the landlady regarding vacation of shops and giving it on rent. The learned Appellate Authority has rightly stated that there are no such admissions made as mentioned by the Rent Controller. It is a case of misreading the depositions. It is also contended by the learned counsel for the respondent that the landlady's husband died and she was having several shops and she wanted the present shop for running her business. The learned counsel for the revision petitioner mainly contends that the nature of business is not disclosed and mere mentioning of Permanent Account Number does not make the need a bone fide one. It is also contended that her financial capacity to support the business was also not established.
9. Adverting to the said contentions, obviously she was getting rents from the shops. It is not obligatory under law to prove her financial capacity to run the business. No doubt, the nature of business she wants to commence is not disclosed. But she stated that she wants to commence business in the name and style of 'Kashap Finance'. Be that as it may, she is entitled to choose the premises, which required for running her business. The Court cannot sit in judgment about the choosing of premises by the landlord unless it is shown to be mala fide and the requirement must be a genuine. Her husband died. May be she wanted to commence business and it cannot be said that she was not having genuine need. Taking into consider over all circumstances of the case, I am of considered view that the appellate court has rightly given finding that her need is a genuine one and she bona fidely required the premises for carrying on business and the tenant is liable to be evicted. Hence, on appraisal of the entire evidence, I come to the same conclusion. I find that the tenant is liable to be evicted on the ground of bona fide requirement for running of business by the respondent.
10. In the result, there are no merits in the revision and it is, accordingly, dismissed confirming the order of the appellate authority. The revision petitioner is granted three months time to vacate the schedule premises and put the same in possession of the landlady.
The civil revision is dismissed accordingly. No order as to costs.