Sikkim High Court
Dr. Sakuntala Sharma vs Mohan Kr. Agarwal on 26 July, 2013
Author: Chief Justice
Bench: Chief Justice
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THE HIGH COURT OF SIKKIM AT GANGTOK
(Civil Appellate Jurisdiction)
DATED : 26.07.2013
CORAM
HON'BLE THE CHIEF JUSTICE
MR. JUSTICE PIUS C. KURIAKOSE
R.F.A. No. 3 of 2013
Dr. Sakuntala Sharma,
Daughter of Shri Hari Bhakta Sharma,
Resident of Bermiok,
P.O. Bermiok Bazaar,
P.S. Kaluk,
West Sikkim. ..... Appellant.
- versus -
Shri Mohan Kumar Agarwal @ Munna,
Son of late Boath Ram Agarwal,
Resident of Jorethang Bazaar,
P.O. & P.S. Jorethang,
South Sikkim. ..... Respondent.
R.F.A. No. 4 of 2013
Dr. Sakuntala Sharma,
Daughter of Shri Hari Bhakta Sharma,
Resident of Bermiok,
P.O. Bermiok Bazaar,
P.S. Kaluk,
West Sikkim. ..... Appellant.
- versus -
Shri Madan Kumar Gupta @ Chotka,
Son of Prashad Gupta,
Resident of Jorethang Bazaar,
P.O. & P.S. Jorethang,
South Sikkim. ..... Respondent.
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R.F.A. No. 5 of 2013
Dr. Sakuntala Sharma,
Daughter of Shri Hari Bhakta Sharma,
Resident of Bermiok,
P.O. Bermiok Bazaar,
P.S. Kaluk,
West Sikkim. ..... Appellant.
- versus -
Shri Mani Kumar Tiwari,
Son of late Ramagya Tiwari,
Resident of Majhi Gaon,
P.O. & P.S. Jorethang,
South Sikkim. ..... Respondent.
R.F.A. No. 6 of 2013
Dr. Sakuntala Sharma,
Daughter of Shri Hari Bhakta Sharma,
Resident of Bermiok,
P.O. Bermiok Bazaar,
P.S. Kaluk,
West Sikkim. ..... Appellant.
- versus -
Shri Niamudin Hussain,
Son of late Noor Hussain,
Resident ofMajhi Gaon,
P.O. & P.S. Jorethang,
South Sikkim. ..... Respondent.
R.F.A. No. 7 of 2013
Dr. Sakuntala Sharma,
Daughter of Shri Hari Bhakta Sharma,
Resident of Bermiok,
P.O. Bermiok Bazaar,
P.S. Kaluk,
West Sikkim. ..... Appellant.
- versus -
Shri Hotilal Prashad,
Son of late Ramlal Prashad,
Resident of Majhi Gaon,
P.O. & P.S. Jorethang,
South Sikkim. ..... Respondent.
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For Appellant : M/s. N. Rai, Sr. Advocate with Sushant Subba,
Advocate.
For Respondent(s) : M/s. A. Moulik, Sr. Advocate with K. D. Bhutia and
Manish Kr. Jain, Advocates.
JUDGMENT
Pius, CJ The appellant Dr. Sakuntala Sharma is the owner of a 5 storied building situated at Jorethang in South District, Sikkim and the respondents are tenants occupying different portions of the said 5 storied building. The parties will be hereinafter called for the sake of convenience as the 'landlady' and 'tenants'. The landlady has preferred these appeals as the Eviction Suits No. 01/2008, 02/2008, 03/2008, 04/2008 and 05/2008 were dismissed by the trial Court the Court of District Judge, South & West at Namchi. Even though appeals pertain to separate judgments authored by the very same Court, I am disposing of these RFAs by this common judgment, in view of the involvement of common facts and common issues.
2. RFA No. 03/2013 pertains to the judgment and decree in Civil Suit No. 02/2008. The respondent in that RFA Mohan Kumar Agarwal is in occupation of the entire 2nd floor of the 5 storied building and he is residing there and is conducting news paper agency business.
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3. RFA No. 04/2013 pertains to the judgment and decree in Civil Suit No. 03/2008 which is occupied by the respondent Shri Madan Kumar Gupta. The above portion is the first floor of the above 5 storied building and he does the business in ginger and brooms.
4. RFA No. 05/2013 pertains to the judgment and decree in Civil Suit No. 05/2008 and the respondent Shri Mani Kumar Tiwari therein is in occupation of one shop room in the ground floor of the above 5 storied building and he is doing clothes business.
5. RFA No. 06/2013 pertains to the judgment and decree in Civil Suit No. 01/2008 and the respondent Shri Niamudin Hussain is in occupation of another shop-room in the ground floor of the said 5 storied building and he is conducting a barbershop and pan shop therein.
6. RFA No 07/2013 pertains to the judgment and decree in Civil Suit No. 04/2008 and the respondent herein Shri Hotilal Prasad is in occupation of a 3rd shop in the ground floor and he is selling sweets from his shop.
7. I shall now refer to the rival contentions in respect of these 5 premises regarding the tenancy and the rate of rent. In all these cases, the tenants raised the common contention that they have nothing to do with the appellant Dr. Sakuntala Sharma. According to 5 them, the landlord and tenant relationship between Shri H.B. Sharma, her father and the respective tenants either directly or in the capacity of being legal heirs of original tenants. The appellants case regarding the rent in RFA No. 03/2013 is that the current monthly rent is Rs.3,000/- per mensem, but the respondent tenant's case is that the current monthly rent is only Rs.2,100/- per mensem. The appellant's case regarding rent in RFA No. 04/2013 is that the current monthly rent is Rs.3,000/- per mensem, the tenant respondent in that case however contends that the current monthly rent is Rs.2,500/- per mensem. The appellant's case in RFA No. 05/2013 is that the current monthly rent is Rs.3,500/- per mensem while the tenant respondent therein contends that the current monthly rent is Rs.2,300/- per mensem. The appellant's case in RFA No. 06/2013 is that the current monthly rent is Rs.3,500/- per mensem while the tenant respondent therein contends that the current monthly rent is only Rs.2,500/- per mensem. The appellant's case in RFA No. 07/2013 is that the current monthly rent is Rs.4,500/- per mensem while tenant respondent in that case contends that the monthly rent is Rs.2,800/- per mensem.
8. In all these cases, which are seen instituted for eviction under the provisions of Notification No. 6326-600-H&W - B dated 14.04.1949. The grounds invoked are default in payment of rent; own occupation by the landlady and also the requirement for thorough overhauling of the building.
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9. The landlady's case regarding arrears of rent in RFA No. 03/2013 which is corresponding to Civil Suit No.2/2008 is that the rent is in arrear @ Rs.3,000/- per mensem from May 2006. The case of the tenant in that case regarding the arrears is that the original tenancy was between his father and the landlady's father and that while the tenancy commenced a sum of Rs.10,000/- equivalent to 10 months rent @ Rs.1,000/- per mensem was entrusted to the landlady's father against Exhibit-A receipt and at that time the landlady's father informed the tenant that thereafter the tenancy will be based on verbal arrangement and no receipt will be issued when rent is paid. According to the tenant, rent @ Rs.2,100/- per mensem has been paid upto February 2008. Since March 2008 the landlady's father declined to accept the rent @ Rs.2100/- per mensem from the tenant.
10. The landlady's case in RFA No. 04/2013 corresponding to Civil Suit No. 03/2008 regarding the rent in default is @ Rs.3000/- per mensem from May, 2006 to February, 2008. The tenant's defence is that he paid rent upto February, 2008. He contends that there was heated arguments between the appellant's father and him regarding the payment of rent upto 08.08.2006; on 08.08.2006 the matter reached the Jorethang Police Station, where the appellant's father agreed to supply receipts for the already paid rent and the appellant's father issued Exhibit - A receipt collectively, wherein the appellant's 7 father admitted that the rent was cleared upto July 2006 @ Rs.2100/- per month and was received by him in presence of the Officer In- charge, Jorethang Police Station, as rent for June and July, 2006 @ Rs.2100/- per mensem.
11. The landlady's case regarding the arrears of rent in RFA No. 05/2013 corresponding to Civil Suit No. 05/2008 is that the rent is defaulted by the tenant from January, 2007 @ Rs.3,500/- per mensem till February, 2008. The tenant's content is that the rent is Rs.2300/- per mensem and that he has paid all rent from January 2007 as claimed by the landlady. As the landlady's father refused to accept rent @ Rs.2300/- per month from April, 2007 onwards and rent was sent through money orders. Exhibit-B collectively are the money order documents @ Rs.2300/- per mensem from April 2007 to April, 2008. It is contended that rent prior to April 2007 was already paid to the father of the appellant.
12. The landlady's case regarding the rent in RFA No.06/2013 corresponding to Civil Suit No. 01/2008 is that rent is defaulted by the tenant @ Rs.3,500/- per mensem from January 2007 till February, 2008. The tenant's case is that on 06.09.1991 at the time of inception of the tenancy he paid Rs.10,000/- to the landlady's father being 10 months' rent for which Exhibit - A receipt is issued. From April, 2007 and onwards as the landlady's father declined to accept rent @ 8 Rs.2500/- per month, the same was sent by money order. Exhibit - B collectively are the money order documents from April, 2007 till March, 2008.
13. The landlady's case regarding the rent in RFA No. 07/2013 corresponding to Civil Suit No. 04/2008 is that rent @ Rs.4,500/- per mensem is defaulted by the tenant since January, 2006 till February, 2008. The tenant therein would contend that the present rent is Rs.2,800/- per mensem and that as the landlady's father refused to accept rent @ Rs.2800/- per mensem from January, 2006, rent was despatched through money orders. Exhibit - A collectively are the money order coupons.
14. As regards the ground of overhauling, it was common pleadings which were raised by the landlady in all the 5 suits. It was pleaded that the building of the appellant-plaintiff has not been repaired for last so many years and is in a dilapidated condition. It was pleaded that there was a possibility that the building may collapse for want of proper repairs as the tenants has been using the building so rashly and negligently. It was pleaded that the electricity wirings are worn out and the wires are exposed in the building which may cause fire due to short circuit in the building. It was pleaded that the window and door panes of the building are rotten and the earthquake 9 which took place on 14.02.2006 created cracks in the building and therefore the building requires thorough overhauling.
15. The tenants would jointly deny the above allegations. According to them, the allegations are that the building is in a dilapidated condition and that they have been using the building so rashly and negligently are without basis. The allegations regarding the condition of the electricity wiring, the window and door panes, wall etc. are all denied and it is contended that the question of thorough overhauling of the building does not arise.
16. Another common ground raised by the landlady in the 5 suits is that she is a Doctor by profession and her sister Pratima Sharma and her husband are all Doctors by profession. Owing to a large number of qualified Doctors coming out every year there is crisis in getting Government job. Moreover the Government of Sikkim has adopted a policy of capacity building in each individual of the State of Sikkim. Hence being Doctor by profession she intends to convert her building into a Nursing Home along with her sister for her life and livelihood and not only for the benefit of the local people of South and West Sikkim but local people will also get job opportunity. She requires the building for her bonafide purpose. Her verbal requests to the tenants to vacate the premises were not of any avail; she issued 10 legal notices through her counsel to all the tenants, but the tenants even did not respond at all.
17. The learned District Judge on considering the pleadings would raise more or less similar issues in all the cases as follows: -
Issue No. 1 - Whether the plaintiff is the absolute owner of the tenanted suit premises?
Issue No. 2 - Whether the defendant is liable to be evicted from the tenanted suit premises on the ground of bona fide requirement of the plaintiff or default in payment of rent?
Issue No. 3 - Whether the tenanted suit premises is in a dilapidated condition requiring thorough overhauling?
Issue No. 4 - To what relief or reliefs, if any, the plaintiff is entitled to.
18. The evidence in Eviction Suit No. 02/2008 consisted of the testimonies of landlady and her father, H.B. Sharma as PWs 1 and 2 and the tenant Mohan Kumar Agarwal and his fellow tenants in 4 other cases are DWs 1 to 5. The documentary evidence on the side of the plaintiff are Exhibit - 1 to Exhibit - 9 (a) to (e). The documentary evidence of the tenants in that case consisted of Exhibit - A to Exhibit - F (a) to (c).
19. The evidence in Eviction Suit No. 03/2008 consisted of the oral evidence of the same 2 witnesses on the side of the plaintiff PWs 11 1 and 2 and Exhibit 1 to 9 (a) to (e) are the documents on their side. The evidence on the side of defendant consisted of oral evidence of respondent-defendant as DW 1 and his fellow tenants are DWs 2 to 5. The documentary evidence of the tenants consisted of Exhibit - A to Exhibit - F (a) to (c).
20. In Eviction Suit No. 05/2008 the evidence on the side of the plaintiff consisted of same witnesses as PWs 1 and 2 and documents exhibited as Exhibit - 1 to Exhibit - 10 (a) to (e). The evidence on the side of the defendant tenant consisted of oral evidence of DW-1 and that of fellow tenants as DWs 2 to 6. The documents exhibited as Exhibit - A to Exhibit - G (a) to (d).
21. The evidence in Eviction Suit No. 1/2008 on the side of the landlady consisted of the oral evidence of the same PWs 1 and 2 and documents Exhibit 1 to Exhibit - 10 (a) to (e). On the side of the tenants the same consisted of oral evidence of DW1 and oral evidence of some of his fellow tenants as DWs 2 to 5. The documentary evidence consisted of Exhibit - B (a) to Exhibit - G (a) to (c).
22. In Eviction Suit No. 4/2008, the evidence on the side of the plaintiff landlady consisted oral evidence of the same PWs 1 and 2 and the documentary evidence of Exhibit 1 to 9 (a) to (e). On the side of the tenant, the witnesses were he himself as DW-1 and 5 of his 12 fellow tenants as DWs 2 to 6. The documents on his side were Exhibit - A to Exhibit - F (a) to (c).
23. The learned District Judge by the judgment and decree which are impugned in these appeals would decided almost all the issues in these cases except the issue regarding the landlady's title over the property against the landlady. It was found that the landlady was having title to the building and the respondents are her tenants. The learned District Judge in the separate judgment would hold that the landlady failed in establishing that there was a bona fide need for the tenanted building for the commencement of a Nursing Home. The Court would further hold that the landlady was not successful in establishing the ground on overhauling and it was also held that the landlady had failed in showing that the tenants are defaulted in payment of rent as alleged. All the 5 suits were dismissed.
24. It was senior counsel Mr. N. Rai who addressed me on behalf of the appellant in all these 5 appeals. Mr. Rai would assail the findings of the learned District Judge in all the five judgments which are impugned. According to him, these are all cases where eviction should have been allowed by the Court below on all the 3 grounds. He submitted that the most important ground which has been raised in all the five cases is the ground of personal occupation of the appellant-petitioner, a Physiotherapist who wants to conduct a Nursing 13 Home in the entire building along with her own sister, who is Doctor and her brother-in-law (sister's husband) who is also a Doctor. According to Mr. Rai, it has come out in evidence that the petitioner is a Physiotherapist, and it has come out further in evidence through the testimonies of the appellant and her father that the appellant's sister and brother-in-law are doctors by profession. He pointed out that even in the pleadings the claim of the appellant that she is a qualified Physiotherapist and that her sister and brother-in-law are qualified medical practitioners is not seriously disputed. It has come out in evidence that the appellant is presently unemployed. It is not suggested even either to the appellant or her father that the appellant is presently having some other avocation elsewhere. It has also become evident that the appellant is a young and unmarried lady. In this factual backdrop, the case of the appellant that she needs the entire building which is the only one building belonging to the appellant on the face of the earth to make use of the building for conducting a Nursing Home could have been presumed to be a genuine one. The Court below adopted a pedantic approach and negated the appellant's claim on flimsy reasons. The law allows a certain amount of latitude to the landlord in the matter of determining as to the nature of the activity to be conducted by him and the landlord is always considered to be the best judge of his requirement. 14
25. Mr. Rai submitted that in the instant case, the Court sat in judgment over the wisdom of the landlady in deciding that a Nursing Home will be conducted in her building. The defence regarding the bona fide need, according to Mr. Rai, was raised mostly in the context of the size of the buildings, the nature of the locality where the building is situated (which according to them is a residential locality), the possibility of statutory authorities permitting conduct of a Nursing Home in a building of this size and magnitude. According to Mr. Rai, the appellant has no other choice in the matter of a building where she can conduct a Nursing Home as this is the only building belonging to her. The tenants cannot dictate to the appellant that she shall conduct a Nursing Home of a particular size and magnitude. According to the learned senior counsel there are small Nursing Homes, big Nursing Homes and even medium-sized Nursing Homes. The appellant will conduct the proposed Nursing Home in association with her sister and brother-in-law after making minimum modifications and alterations to the existing building. Bona fide is a state of mind which may not be capable of being proved by direct documentary evidence. The appellant can only adduce oral evidence. The truth of what was in the oral evidence is to be tested by various circumstances attending upon the case. No circumstance could be brought out by the respondents to show that the petitioner has raised this claim in commencing a Nursing Home as arose for evicting the tenants. No 15 oblique motives whatsoever has been alleged against the appellant. The appellant does not stand to again anything by simply evicting the tenants for the sake of evicting them. It is only her genuine need to commence a Nursing Home that she has projected as a ground of eviction in the suits she filed. The Court below has not chosen to apply its mind to binding the judicial precedents rendered by the Hon'ble Supreme Court and other High Courts in provisions which are almost in pari materia with the provisions which are applicable here. The total non-application of mind by the learned District Judge, according to Mr. Rai, is evident from the fact that the learned District Judge has started the judgment by quoting the provisions of Gangtok Rent Control Eviction Act, 1956, which did not have any application at all in this case. This non-application of mind by the learned District Judge has resulted in serious prejudice to the appellant and failure of justice.
26. Mr. Rai would assail the findings and decisions of the Courts below in the context of the ground of thorough overhauling of the premises also. According to him, when oral evidence adduced on both sides in the context of the ground is carefully read, it is seen that as on today the condition of the entire building is such that the same requires overhauling. Therefore, according to the learned Senior Counsel, the Court below should have ordered of eviction on the ground of overhauling.
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27. Very serious submissions were made by Mr. Rai in the context of the ground of default in payment of rent. According to Mr. Rai, learned District Judge has cast the burden of proof wrongly upon the appellant-landlady. In this context, the defence raised by all the tenants in the context of the ground of default in payment of rent was bereft of all bona fides. The tenants went to the extent of disputing the landlady's title to the building. The Court below having correctly found that landlady's claim that she has title over the building is true, should have further found that the defence adduced by the various tenants on the ground of default in payment of rent raised against them was untrue. Most of the tenants have produced receipts against payment of advance at the time of tenancy commenced. It shows that the landlord was never hesitant to issue receipt, if so requested for by the tenants. Some of the tenants have produced documents pertaining to despatch of rent by money order. Nothing prevented respondents in RFA Nos. 3 and 4 also from sending the amounts by money order. The case of the tenants that they paid the amount without taking a receipt cannot be accepted even for a moment, according to Mr. Rai.
28. Mr. Rai would fortify his submissions by citing many a authority. The judgment of the Full Bench of the Orissa High Court in Raghaba Chandra Das vs. Bipin Behari Mohapatra and others : 17
AIR 1989 Orissa 40, was cited first by him in support of the proposition that once the Court finds that sufficient materials are brought on record to show the need projected by the landlord is genuine then the landlord should be allowed the freedom for satisfying his need in a manner which is most suitable to him in accordance with the existing exigencies. The senior counsel relied on judgment of the Supreme Court in Kailash Chand and another vs. Dharam Dass :
(2005) 5 SCC 375 to canvass the proposition that unless there is material to find that the requirement projected by the landlord was a ruse for eviction or was actuated by any oblique motive, the Court will have to order eviction and the above decision was relied on by him in support of his further argument that own occupation of the landlord will take in occupation by the family members of the landlord also.
Arguing that while deciding whether a particular need is bona fide or not, the Court is expected to have a practical approach instructed by the realities of life, Mr. Rai submitted that the question to be asked is whether the need is a natural, real, sincere and honest and in the circumstance, which attend on the case and, on this proposition, Mr. Rai relied on the judgment of the Supreme Court in Adil Jamshed Frenchman (Dead) by LRS vs. Sardar Dastur Schools Trust and others : (2005) 2 SCC 476. In support of the proposition that the landlord is the best judge of his requirement and the tenant has no right to dictate the terms to the landlord and advise him what he 18 should do and what he should not do in his building. Mr. Rai relied on the judgment of the Supreme Court in Sait Nagjee Purushotham & Co. Ltd. Vs. Vimalabai Prabhulal and others :
(2005) 8 SCC 252. In support of his submission on the ground of default in payment of rent Mr. Rai relied on the judgement of the Supreme Court in Dwarka Prasad vs. Niranjan and another :
(2003) 4 SCC 549 and submitted that even if the rent control legislation is considered to be meant for the benefit of the tenants, the obligation of the tenant to pay to the landlord what is due to the landlord by way of rent has to be discharged by him first before defending action for eviction initiated by the landlord. In support of his argument that the choice of the accommodation has to be left with the subjective decision of the needy of the landlord and that neither the court nor the tenant can have a say to the matter, Mr. Rai relied on the judgment of the Supreme Court in Akhileshwar Kumar and others vs. Mustaqim and others : (2003) 1 SCC 462. For the same proposition he relied on the judgment of the Supreme Court in Smt. Jahejo Devi and other vs. Moharam Ali : AIR 1988 SC
411. According to Mr. Rai even though a survey of decisions on rent control jurisprudence will indicate that the Court generally leans in favour of the tenant, when it comes to decisions rendered in the context of the ground of bona fide occupation, it will be seen that the Courts have equal sympathy for the landlord and the tenant. For this 19 proposition Mr. Rai referred to a judgement of the Supreme Court in Siddalingamma and another vs. Mamtha Shenoy : (2001) 8 SCC 561. According to Mr. Rai as it is proved that the young landlady is unemployed it has to be found that her requirement is bona fide and Mr. Rai relied on the judgment of the Supreme Court in Sushila vs. IInd Addl. District Judge, Banda & Ors : (2003) 2 SCC 281 in this context. Mr. Rai relied on the unreported judgment of this Court in Rajala Devi & others vs. Tashi Tshering Bhutia in RFA No. 01/2012 (authored by myself) for the purpose of his submission in the context of the ground of bona fide need and the ground of default in payment of rent. According to Mr. Rai, when the evidence on record is properly appreciated it will irresistibly follow the landlady is entitled to eviction on all the 3 grounds.
29. Mr. A. Moulik, learned senior counsel appearing for the respondents would resist all the submissions of Mr. N. Rai forcefully. He submitted that there are so many circumstances available in this case which would strongly indicate that the need of commencement of a Nursing Home projected in the case is not a bona fide or honest one. He pointed out that it has come out in evidence that the landlady took her degree in Physical Medicine some 7 or 8 years ago. If there was any genuine need in her mind to start a nursing home, she would have certainly started the same in two floors of the 5 storied building which is already available under her vacant 20 possession. Starting of the Nursing Home in those portions of the larger building which are already available with her was the best way to demonstrate her bona fides in the matter. Mr. Moulik submitted that the nature of the activity which is proposed to be conducted by the landlady is very significant; she wants to conduct a Nursing Home. For conducting a Nursing Home she who is a Physiotherapist will not be able to conduct by herself. For conducting a Nursing Home she will require the services of Doctors. She has pleaded that she will be assisted by her own sister and brother-in-law in the matter of conducting the proposed Nursing Home. In other words it is practically conceded by her that without the assistance of her sister and brother-in-law, she will never accomplish the need which has been projected in the suit. According to Mr. Moulik whether or not the landlady's sister and brother-in-law who appear to be settled now in Bihar will come down all the way to Jorethang where the building is situated and assist the landlady for accomplishing her need of starting a Nursing Home is matter especially within the mind and knowledge of the landlady's sister and brother-in-law. Mr. Moulik submitted that it is very highly probable that the landlady's sister and her brother-in-law who joined the medical profession several years ago are already settled elsewhere (if not in Bihar itself) in their profession. In order that a Court which is conducting an objective enquiry in the landlady's case enters funding in her favour, there must be some material, some 21 responsible and convincing evidence. This court will not be able to say that the landlady is going to be associated by her sister and brother-in-law in the matter as there is not even a single item of convincing. On this short score, the claim of the landlady to have own occupation of the building for the purpose of commencing a Nursing Home has to be found to be not proved.
30. Mr. Moulik would highlight various other aspects which according to him are relevant to determining the truth or otherwise of the claim of the landlady. Mr. Moulik submitted that when a court is taking a decision as to the truth or otherwise of the rival version before the Court in a case like the present one - whether the bona fide need projected is really bona fide on the basis of the oral evidence adduced by the parties which in this case is oath against oath. Only the credibility of the parties will be of great significance. Mr. Moulik submitted that it has come out in this case from the mouth of PW 1 herself that on various material aspects such as construction of the building, leasing out the building, the case pleaded by her in the suit is false. The landlady cannot be boast of much credibility when she herself confessed that she came to this Court with an untrue case with material particulars in the teeth of such confession made by the landlady. Her version regarding the bona fides of her need also has to be examined with utmost circumspection, according to Mr. Moulik. 22
31. Drawing my attention to the pleadings raised by the landlady in the context of the ground that own occupation, Mr. Moulik submitted that the pleadings revealed that the need to commence a Nursing Home in the larger building consisting of the scheduled structure is conceived in her mind on account of circumstance that securing a Government job in Sikkim is difficult. The landlady has not adduced any evidence to show that she made an unsuccessful endeavour to secure a Government job. In her pleadings, her thrust is not on her necessity to do something for eking of living for herself. On contrary, the thrust is on some Government order dealing with capacity building and also on the need of people of Jorethang and surrounding areas to be provided with medical facilities and the resultant chances of children of soil in Jorethang securing small time jobs in the proposed Nursing Home. The appellant has come with such a case instead of coming out with a case of herself requiring to do something for eking out a living for herself as one can expect an unemployed graduate to do. She has projected a case with several frills which according to the learned senior counsel makes her case highly exaggerated and unworthy of credit in a Court of law.
32. Mr. Moulik submitted that the very idea of starting a Nursing Home in the building in question situated within the crowded bazaar or inside the Jorethang Bazaar will not inspire confidence in the mind of a conscientious Court searching for truth. According to him 23 the existing building stands put up on a small plot with measurements of 25' x 30' (750 sft.). According to him any Nursing Home will require sufficient space for facilities such as operation theatre, pathological lab and other departments and nothing has been brought on record by the appellant to show that as to what all facilities will be there in the Nursing Home which she has projected in her suit. He submitted that despite passage of more than six years in conception of her need in her mind the appellant has not obtained any certificate of green signals from the Health Department, Trade Licence from the concerned Department.
33. Referring to Delhi Nursing Home Registration Act, 1953, Medical and Public Health Department Notification dated 01.05.1992 and yet another notification by the Government dealing with the requirement of a standard Nursing Home, Mr. Moulik submitted that it will simply not be possible to conduct a standard Nursing Home in the landlady's building. Mr. Moulik also referred to the building byelaws issued by Gangtok Municipal Corporation and more importantly to Sikkim Allotment of House Sites and Construction of Building Act, 1985 dealing with the statutory setbacks for buildings and submitted that if the statutory setbacks are allowed the building which can be put up on the landlady's site which is too small to accommodate any Nursing Home. Learned senior counsel concluded that the claim was rightly 24 from the bereft of any evidence and there was no warrant of inferring in that.
34. Coming to Mr. Rai's argument on the ground of overhauling Mr. Moulik submitted that the best evidence which have been adduced by the landlady (whose burden it is to show that the building requires overhauling) was in the form of a report by an Advocate Commission on the basis of a local inspection. In not taking out such a commission, the landlady withheld to her best evidence. In the absence of such best evidence, the Court below was perfectly justified in turning down the landlady's case on the ground of overhauling.
35. Elaborate arguments were addressed by Mr. Moulik in the context of the landlady's claim for eviction on the ground of default in payment of rent. According to Mr. Moulik it has been very clearly established in this case through documentary evidence (money order coupons and related papers) that the respondents in RFAs No. 5/2013, 06/2013 and 07/2013 are not defaulters. As the landlady/her father were not inclined to issue receipts when rent which was actually tendered by cash, these 3 tenants used to send rent by money orders promptly. The landlady and her father refused to accept the money order with some sinister motive such a landlady cannot be allowed to evict the tenants on the ground of default in payment of rent. As 25 regards the other two tenants (the tenants in RFAs No. 3/2013 and 04/2013), Mr. Moulik would draw my attention to oral evidence adduced by the landlady and her father, which is to the effect that they were not in a habit of issuing receipts while receiving cash payment. When it is admitted that the practise was of paying cash without receipt, this Court will not be justified in insisting the tenants to produce receipt and proving that they paid the rent. Mr. Moulik submitted that the father PW-2 has admitted at page 72 of the cross examination in RFA No. 07/2013 that he is maintaining notebook for entering details regarding the monthly rent paid by the tenants. Admittedly, he has not produced the above document, the notebook, which would have been the best evidence to prove the truth of the rival version regarding the payment of rent. When such best evidence at the disposal of the landlady and her father are withheld from this Court then adverse inferences are to be drawn against the landlady and not against the tenants.
36. According to Mr. Moulik, the respondents in RFAs No. 3/2013 and 04/2013 have in their oral evidences stated in a very convincing fashion that they have paid the entire rent up to the date of institution of the suit promptly and regularly and that the landlady/her father did not issue them receipts. In the light of the admission from the part of the landlady and her father that they were not in habit of issuing receipts there is no reason why above oral 26 evidence of respondents in RFAs No.3/2013 and 04/2013 should not be accepted by this Court. The oral evidence is also a type of evidence and it is a matter of common knowledge that on various tenancies rent is being paid without issuance of receipt. When the learned senior counsel attention was drawn to the situation that these two tenants did not send even reply to the notice which the landlady has sent to them, Mr. Moulik would submit that the notice which was sent is not a statutory notice which they were not bound to reply. Therefore, according to Mr. Moulik the decision taken by the Court below in all the five cases in the context on the ground of default in payment of rent is also a correct one.
37. Mr. Moulik also cited a good number of judicial precedents in support of the various proposition canvassed by him.
38. Firstly, Mr. Moulik would cite the judgment of the Supreme Court in Hameedia Hardware Stores vs. B. Mohan Lal Sowcar :
(1988) 2 SCC 513 in paragraphs 5, 13 and 14, he submitted that it has been noticed by the Supreme Court that the main objective of all rent control legislations in India is to prevent unreasonable eviction of the tenants. Learned counsel submitted that the question as to whether a claim projected by the landlady is bona fide one is to be decided by the Court in an objective manner after holding objective enquiry into the matter. When such an objective enquiry is 27 conducted, it will be seen that the claim of own occupation is not at all honest one but it is only arose. Mr. Moulik would then rely on a judgment of the Supreme Court in Agasara Yallappa vs. D.S. Sathyendra Rao : (2007) 15 SCC 711. The learned senior counsel by referring paragraph 4 of the above judgment submitted that even the dimensions of the building where a Nursing Home is to be proposed to be conducted will be relevant when the Court makes an enquiry into the objectivity of the need projected. The learned counsel relied on the judgment of the Supreme Court in Davis vs. Sebastian : (1999) 6 SCC 604 to submit that the question of comparative hardship was also a consideration to be borne in mind by the Court before deciding whether an entrenched tenant who is seeking out a livelihood by conducting business in the premises in question is ordered to be evicted. Mr. Moulik relied also on the judgement of the Supreme Court in S.J. Ebeneser vs. Velaudhan and others : (1998) 1 SCC 633. Referring to paragraph 10 of the judgment the learned senior counsel submitted that while considering the question of bona fides, what is necessary to bear in mind is that mere desire on the part of the landlord is not enough. The desire should be tested objectively and not subjectively. The burden also lies upon the landlord to establish that he needs the building genuinely. It will be found by this Court also that as was found by the District Court that the need projected here is not a bona fide one. Mr. Moullik also 28 relied on a judgment of the Supreme Court in Rahabhar Productions Pvt. Ltd. Vs. Rajendra K. Tandon : (1984) 4 SCC
49. On basis of the observations in paragraphs 18 and 14 of the above judgment, Mr. Moulik submitted that in order that a need projected by the landlord or landlady is found to be bona fide, the Court will have to find that the need is genuine, honest one, conceived in good faith as distinguished from a mere desire. In this case, at least it can be said that there is a desire which has not ripened to a need. Mr. Moulik also referred to a judgment of the Supreme Court in Kishan Chand vs. Jagdish Pershad and others : (2003) 9 SCC
151. It was submitted that the concealment of material facts by the landlady already having vacant possession of two floors, itself may justify this Court from denying relief to her.
39. I have given my anxious consideration to the pleadings addressed at the bar. I have carefully read through the impugned judgments. I have made a survey of the entire evidence available on record.
40. I shall first deal with the landlady's claim of eviction on the ground of overhauling. I have no difficulty in accepting the submissions made by the learned senior counsel for the tenants that this is a case where the best evidence for substantiating the landlady's 29 case that the condition of the building is such that it needs a thorough overhauling has not been brought on record by the landlady. According to me, the best evidence would have been a report of an advocate commission on the basis of a local inspection in order to substantiating the above ground, which is comparable to the ground of re-construction provided under various other state laws pertaining to eviction of tenants. It is not the physical condition of the building alone is important. Even social conditions of the building, the profitability of the proposal from the point of view of the landlord, all may be relevant considerations. Whether it be, the physical or the social condition of the building - a report by an advocate commission based on a local inspection is the best evidence. In the absence of such evidence, I do not find any justification for interfering with the decision of the Court below to decline eviction on the ground of overhauling. I, therefore, approve the decision of the Court below in declining eviction on the ground of overhauling.
41. I shall now deal with the ground of default in payment of rent. When I look at the averments regarding that ground which is common in all the five cases and the pleadings and the evidence available in the cases, I find that cases, RFA No. 05/2013 (Civil Suit No. 05/2008), RFA No. 06/2013 (Civil Suit No. 01/2008), RFA No. 07/2013 (Civil Suit No. 04/2008), stand on a different footing then the cases RFA No. 3/2013 (Civil Suit No. 02/2008) and RFA No. 04/2013 30 (Civil Suit No. 03/2008). In RFAs No. 05/2013, 06/2013 and 07/2013, I find that the rent which the landlady alleges to have been defaulted by the tenants was being regularly sent to the landlady by money order by the respective tenants. The endorsement of the postman on the money order coupon is to the effect that the landlady refused to receive them. The landlady's version in her evidence and the submission of Mr. Rai before me was that the money orders were never brought to her by the postman. When there is specific endorsement by the postman made on the coupons that the landlady refused the money orders which were addressed to her in an address shown by her in the suit, I find it difficult to accept the landlady's version that the money orders were never taken to her. If that is her case, then it was her burden to have cited and cross examined the postman which she had not done. Thus there is documentary evidence in these 3 cases to show that the rent which is alleged to have been defaulted by 3 tenants was actually sent by them to the landlady and the landlady deliberately refused to accept the same. It is true that these three cases are disputed in respect of rate of rent. In RFA No. 05/2013, while the landlady urged that the monthly rent is Rs.3500/- and the tenant contends that its Rs.2300 only. In RFA No. 06/2013, while the landlady says that the rate of rent is Rs.3500/- and the tenant say that it is 2,500/-. In RFA No. 07/2013, while the landlady says that it is Rs.4500/-, the tenant says that it is Rs.2800/-. 31 For settling the controversy the documentary evidence available in the cases are the money order coupons themselves. In the money order coupons it is seen that during the relevant period rent was being sent at the rate claimed by the tenants. The tenants have made endorsement also on the coupons indicating that the monthly rent is at the rate claimed by them in the suit. According to me, when the rate of rent is disputed the burden is that of the landlady to show and prove that the rate claimed by her is the correct rate. That burden is not discharged by the landlady. I am therefore inclined to accept the version of these 3 tenants regarding the rate of rent. The result of the above discussion will be that I hold that the landlady is not entitled for order of eviction against these 3 tenants (tenants in RFAs No. 05/2013, 06/2013 and 07/2013) on the ground of default in payment of rent.
42. Now, I shall deal with the claim of the landlady to evict the tenants who are respondents in RFA No. 03/2013 (Civil Suit No. 02/2008) and RFA No. 04/2013 (Civil Suit No. 03/2008) on the ground of default in payment of rent. In Civil Suit No. 02/2008 (RFA No. 03/2013), the landlady's case is that the monthly rent is Rs.3000/- and the same is defaulted since May, 2006. The tenant's case is that the monthly present rent is Rs.2100/- and that the rent has been completely paid up to February, 2008 (the amounts claimed in the 32 plaint) and thereafter rent is not paid because of the landlady's father refused to accept the same. In this case, Exhibits - A(b) and A(c) documents give clear support to the tenants case that the monthly rent is Rs.2100/-. Coming to Civil Suit No. 03/2008 (RFA No. 04/2013), the case of the landlady is that the monthly rent is Rs.3000/- while the case of the tenant is that it is only Rs.2100/-. While the landlady's case is that the rent in arrear at the rate of Rs.3000/ from May 2006, while the tenant contends is that rent paid up to February 2008 (amount claimed in the notice) is paid off and thereafter the landlady's father refused to accept the same. Unlike Civil Suit No. 3/2008, no document is produced here by the tenant regarding the rate of rent. Nevertheless I am inclined to accept the case of the tenant in Civil Suit No. 2/2008 regarding the rate of rent as I do not find any document produced by the landlady showing that the rate of rent is as she claims. It is the landlady's burden to adduce evidence and prove that the rate is as per landlady's claim. Therefore I hold that the monthly rent payable by these two tenants is Rs.2100/- per month. But my question is whether their plea of having paid of these amounts to the landlady's father without taking a receipt can be accepted. The argument of Mr. Moulik in these cases was that as it has been admitted by the landlady and her father that they were not in the habit of giving receipts, the version of the tenants that they actually paid the rent to the landlady's father should be accepted. 33 Even though Mr. Moulik was very persuasive on the above submission of his, I am not inclined to accept the same. The plea raised by these two tenants in answer to the landlady's allegation of default in payment of rent is essentially one of discharge without voucher. I must immediately observe that such a plea is a plea which is very difficult to sustain. The tenancy was certainly oral tenancy, but these tenants at the time of commencement of the tenancy had paid certain advance amount to the landlord and taken a receipt from him for such advance amount. On scanning the entire evidence in the case, there are materials to conclude that during the disputed period the relationship between the parties was not that cordial. To believe their version that during that period they paid rent without insisting on a receipt from the landlady is very difficult. It should not be forgotten that their fellow tenants in the same building (Building subject matter of RFAs No. 5/2013, 06/2013 and 07/2013) were at that time sending the rent to the landlady's father by money orders. These two tenants I understand are carrying on business activities in respect of income wherefrom which there should be some documents. One of them (respondent in RFA No. 03/2013) has agency of several newspapers. The other one (respondent in RFA No. 04/2013) is doing business in ginger and brooms and he has got a fairly big turnover in his business. If as a matter of fact these two tenants have paid rent as they claim the records relating to their business income will reveal such payment. 34 Non-production of such records, in my opinion, will justify drawal of adverse inferences against them. The burden of proof of being what it is, despite the statement of landlady and her father that they were not in the habit of issuing receipts, I hold that the version of the tenants that they paid rent to the landlady's father without receipt cannot be accepted. In other words, the plea of discharge raised by the tenants in RFAs No. 03/2013 and 04/2013 fails. The Court below has not appreciated the evidence pertaining to the landlady's plea for eviction on the ground of default in payment of rent in proper perspective. The findings of the Court below requires interference and interfering with finding and the decision of the Court below in the context of the ground on default in payment of rent, I hold that these two tenants (respondents in RFAs No. 3/13 and 4/13) are liable to be evicted on the ground of default in payment of rent. I order accordingly.
43. I now come to the most important ground - own occupation of the landlady. The rival pleadings raised by the parties and the evidence adduced on both sides in this context is re-apprised by me. I keep in mind the ratio emerging from various decisions cited before me by the counsel on both the sides. I must notice immediately that almost all the decisions cited before me by the learned counsel on either side were rendered in the context of other State laws in India and not in the context of the Notification No. 6326- 35 600-H&W-B dated 14.04.1949 which is the relevant law. I had in my judgment in Rajala Devi & others vs. Tashi Tshering Bhutia (RFA No. 01/2012) observed that the state of affairs pertaining to the rent control legislation here is quite unsatisfactory. A copy of the above judgment has been provided to the State Government hoping that the Government will come out with a comprehensive legislation so that there will be more clarity and specificity regarding the rights and liabilities of landlords and tenants in the State of Sikkim. Even though the decisions cited before me (most of them are the decisions of the apex Court) were rendered in the context of provisions in other local legislations they have to be considered relevant as concept of bona fide need in rent control jurisprudence has been expatiated in most of them. It is well settled that bona fide need does not mean an absolute pressing necessity without accomplishing which the landlord or the landlady cannot pull on even for a moment. Bona fide need means nothing other than a reasonable need or requirement involving an element of necessity. In other words, when a claim of requirement of the landlord for bona fide occupation of the tenanted building is raised what the courts are expected to enquire is as to whether the landlord is projecting a reasonable need involving an element of necessity or whether the need has been projected merely as ruse for evicting the tenants. I am of the view that the bona fides or otherwise or the need projected by the landlady in the present case need only be 36 tested on the touchstone of the parameters indicated by the apex Court in various decisions cited before me.
44. The primary object of all the rent control legislation in India has been to prevent of collection of exorbitant rent and eviction of tenants on frivolous and un-genuine grounds. When we survey the judgments of the apex Court and various High Courts during earlier years it will be seen that in their interpretation of the provisions of the respective rent control legislations the superior court used to lean a little in favour of the tenants as it was for their benefit that the legislation was introduced curtailing the right of the landlord to evict his tenant which was otherwise almost unqualified in terms of the general law in the country namely the transfer of property act. But Since 1987 it would appear that a slight shift has happened in the Court's view regarding the purpose of rent control legislation and the Hon'ble Supreme Court in Ganpat Ram Sharma vs, Gayatri Devi :
(1987) 3 SCC 576 has taken the view that the rent control legislation is a "beneficial legislation to both the landlord and the tenant. It protects the tenant against unreasonable eviction and exorbitant rent. It also ensures certain limited rights to the landlord to recover possession on stated contingences". According to me, the rent control legislation benefits the tenants because it protects the tenant from eviction on frivolous grounds. It protects landlord by ensuring eviction on genuine grounds. Thus when a case for eviction 37 on the ground of bona fide need comes up for decision, the cardinal issue which has to be considered by the Court is whether the need projected is a genuine and a reasonable one or whether it is only a protection for evicting the tenant by hook or by crook .
45. The bona fides is a state of mind. Therefore, direct evidence regarding the same can only be oral. Further evidence which is capable of being adduced regarding the bona fides of the claim for own-occupation is circumstantial evidence. In other words, it is possible for a tenant to show from the circumstances attending on a given case that the case of the landlord or landlady that he or she has the bona fide need to occupy the building after evicting the tenant is not a genuine one. The landlady before me is a young unmarried graduate in physical medicine. Her case is that she needs to evict the tenants who are in occupation of substantial portions of a 5 storied building belonging to her situated in Jorethang an important town of South Sikkim. Evidently the above 5 storied building a portion of which is occupied by the 5 tenants before me is the only building belonging to the landlady. The landlady's need is to start a Nursing Home. The landlady is not a qualified medical practitioner. Therefore, commencement and conduct for a Nursing Home by her is possible only with the assistance of qualified medical practitioners. According to her, her sister and brother-in-law are qualified medical practitioners 38 and they are all willingness to assist her. The above case at least at first blush would appear to be an honest one as one cannot find anything unreasonable in a young physical medicine graduate. thinking in terms of commencement a nursing home along with her sister and brother in law, both of them doctors, in a building situated in a commercial area in an important town of the State especially when the said building is shown to be the only building belonging to the landlady. But then the learned counsel for the respondents have highlighted several aspects and circumstances which may indicate that the landlady's claim is not a genuine one and that her idea is to evict the tenants under one pretext or the other. One circumstance which was highlighted before me by Mr. Moulik was that the building is not a very big one for commencing a big nursing home; that the building is not situated in a serine atmosphere; it is situated among the bustles of a commercial town, that the area where the building is situated is not hygienic etc. These submissions do not have much appeal to me especially as the landlady before me has no other choice. The 5 storied building a portion of which are occupied by the tenants before me is the only building belonging to the landlady. Law allows a certain amount of latitude to the landlady in the matter of deciding on the nature of business or activity to be conducted by her for eking out a living. When the landlady has only one building and when she is graduate in physical medicine, the wisdom behind her decision to 39 commence a nursing home in the above building, in my view, cannot be ordinarily questioned by the tenants unless there are clinching circumstances to show that the eviction proceedings are initiated with oblique motives. Even though several contentions have been urged including a contention that the landlady does not have title (a contention which did not find favour with the court below), the tenants in this case have not contended that the landlady has any specific oblique motive in evicting the tenants. It is not contended that the landlady's idea is to let out the building to somebody else that the landlady's idea is to dispose of the building; for a very huge price after getting possession. The circumstance that no specific oblique motive is attributed to the landlady is a circumstance which very much supports the landlady's case that she is projecting a genuine need.
46. Another circumstance highlighted by Mr. Moulik for demolishing the bona fides of the need projected by the landlady was based on the building rules. The argument was that the building rules and rules prescribed by the Government of Delhi regarding the nursing homes will not permit conduct of nursing home in the land lady's building. As for the Delhi Government rules, I am of the view that thelandlady who is aspiring to start a nursing home in Sikkim does not have to be worried about the rules framed by the Government of Delhi in respect of nursing homes. The submission of Mr. Moulik that 40 certain minimum standards are required for commencing any Nursing Home is certainly a sound submission. But the learned senior counsel's submission that the 5 storied building offends the rules and further submission is that the 5 storied building is not big enough up to accommodate nursing home do not appeal to me. As for the size of the building, I have noticed that nursing homes of various sizes do exist and it is always open to the landlady and her sister and brother in law to have a nursing home of the size which can be accommodated in the 5 storied building. As for the minimum standards, I will only say that if the landlady her sister and brother in law (once they start the nursing home) do not maintain the required standard they will not be given patronage by the patients and the statutory authority concerned on report being received by them regarding non maintenance of minimum requisite standards will take appropriate steps. The tenants do not have to be worried about that aspect at this stage.
47. Another argument, which was addressed before me with all seriousness by Mr. Moulik, was that the landlady, if her need was genuine, could have started the Nursing Home in the two floors of the 5 storied building, which are already in her vacant possession. This argument also does not appeal to me. Even according to the tenants, the entire 5 storied structure itself is not big enough to accommodate 41 a good Nursing Home what the landlady has conceived is the commencement of Nursing Home with all the facilities which can be accommodated in her 5 storied building. The landlady cannot be blamed for waiting till she gets the vacant possession of the entire 5 storied building for commencing her Nursing Home.
Mr. Moulik's submission about the non-obtaining of licence from the Health and other various Departments also do not appeal to me, as obtaining of licence is possible only in respect of vacant buildings.
48. The observations that I have made hereinabove do not enable me to straightway order the eviction against the tenants. In deference to Mr. Moulik, learned senior counsel, I must refer to some more of the arguments he addressed attacking the bona fides of the landlady's claim. One argument was that as the essential question is the truth or otherwise of the claim, since it has been confessed by the landlady herself that on certain material particulars such as construction of the building and the leasing out of the building she has come out with a false case, even her claim of bona fide in occupation should be found to be tainted.
49. It is true that on certain particulars such as construction of the building and commencement of the tenancies, the landlady's case was confessed by herself to be incorrect, e.g. the landlady had to 42 agree that her version that she constructed the building at a time when she was 7 years old child girl and that she let out the building to the tenants and the predecessors of some tenants during her childhood days is incorrect. But the question before me is to whether on account of such incorrectness which is highlighted before me by Mr. Moulik as "falsehood" her claim of own occupation for commencing of a Nursing Home also should be found by me to be a false one.
50. In this context, one cannot be unmindful of everyday realities in the matter of conducting litigation in our courts. Though pleadings are raised by the parties to be signed and verified by them, it is a matter of a common knowledge that on the basis of the oral instruction taken from the parties, pleadings are drafted for them by their counsel and often on account of communication gaps incorrectness creep into the pleadings which are finally prepared and parties subscribe signature to the pleadings under the belief that pleadings have been prepared exactly in terms of the instruction given by them.
51. The date of construction of the building is not very material in this particular case except in the context to the ground of overhauling which I have already decided against the landlady. The date of commencement of the lease is also not material in this case in 43 view of the admission by all the tenants regarding their status in the building as tenants. In other words, I am of the view that those aspects on which the landlady confessed, her pleadings were false (meaning incorrect) are not so vital as to affect the truth of the claim projected by her in the case. In other words, I conclude without hesitation that just because the landlady's pleadings regarding the construction of the building and commencement of the lease have been found to be incorrect, it cannot follow that her claim for own occupation is also incorrect. As already stated whether her claim for own occupation is a bona fide one is to be decided by testing the same on the touch stone of the various circumstances obtaining in these cases. As already indicated several circumstances have been brought out on record such as the young age of the landlady, her possessing of degree in physical medicine, her own sister and brother- in-law being medical practitioners, her being unemployed which indicates that it is probable that her claim is bona fide. But the question before me is whether she has been able to establish in these cases by sufficient evidence that her claim is bona fide so as to justify passage of an eviction order against the respondents. That question, I am afraid, cannot be answered in favour of the landlady now for the following reasons:
52. As already pointed out, the landlady has a degree in physical medicine only. Whatever may be her background and 44 capabilities, on her own showing that she will not be able to conduct a Nursing Home by herself, she will be able to conduct a Nursing Home only if her sister and brother-in-law assist her or associate with her. The non-examination of both or at least either of them as a witness on her side is as of now fatal to her claim for own occupation. Mr. N. Rai, learned senior counsel, during the course of his arguments requested that opportunity be given to the landlady for examining her sister and brother-in-law, at least one among them. This request was very stiffly opposed by Mr. A. Moulik, learned senior counsel for the respondents, who submitted that if opportunity is now to be given to the landlady that will amount to enabling her to fill up the lacunae in her evidence which will cause a serious prejudice to the respondents- tenants, who by the evidence presently on record are entitled for a negative order viz. an order of dismissal of the suit on the ground of own occupation. Despite the stiffness of Mr. Moulik's opposition, I am inclined to afford opportunity to the landlady to adduce further evidence for substantiating before the Court below that the claim projected by her for commencement of Nursing Home is genuine one and that the same is not ruse to evict the tenants. In fact during the course of arguments in the case I enquired of Mr. Rai whether his client the landlady will be ready to assure this Court by filing an affidavit or undertaking that if she gets possession of the entire building, she will utilise the building for the purpose of commencing 45 the Nursing Home and for that purpose only. Mr. Rai answered my query in the positive; in fact the landlady did file an affidavit. The above affidavit reads as follows: -
"1. That I am the Appellant in RFA No. 3, 4, 5, 6
and 7 of 2013 as such I am conversant with the facts and circumstances of the matter.
2. That in pursuance to the assurance and undertaking given by me before this Hon'ble Court during the course of hearing dated 22.07.2013, I would like to state as under: -
a) That I undertake to use the suit premises
for opening up and running the nursing
home if the Respondents in RFA No.
3 to 7 of 2013 vacate the suit premises in
my favour.
b) That I do not intent to sell the suit
premises. I want to open up the Nursing
Home therein for my livelihood.
c) I shall not let out the suit premises to the
other persons if the Respondents in RFA
3 to 7 of 2013 vacate the same.
d) That after receiving the vacant premises,
I shall renovate, prefabricate and
remodel the suit premises to suit it for
running a Nursing Home therein.
e) I intend to name the above referred
Nursing Home as "Good Will Nursing
Home"."
46
53. Ideally, the landlady could have also stated in the affidavit that she will not sell the suit premises or transfer her interest in the premises by lease or mortgage for at least 3 years from the date of getting eviction possession. It was submitted by Mr. Rai that an additional affidavit in the above lines will also be filed by the landlady before this Court. It is now since that such an additional affidavit is also filed by the landlady.
54. In view of filing of the above affidavits, I am inclined to feel in these cases that the landlady may be able to prove that her need is bona fide. As already observed by me by referring the judgment of the Supreme Court in Ganpat Ram Sharma vs. Gayatri Devi : (1987) 3 SCC 576, rent control legislation is a welfare legislation both for landlord/landlady and tenant. In that while benefitting the tenants by preventing their eviction on frivolous grounds and by controlling the rent payable by them, it benefits the landlady by assuring them of eviction upon existence of a valid ground. I am of the view that considerations of justice demand that the landlady be given an opportunity to adduce further evidence of whatever nature as she wants for substantiating that the bona fide needs the building for commencement of Nursing Home with the assistance of her sister and brother-in-law. I do not think any legal prejudice will be occasioned to the tenants by affording such 47 opportunity as they are continuing in possession of the building without any modification regarding the rate of rent.
55. The last submission of Mr. Moulik was that if this Court is inclined to give opportunity to the landlady to adduce evidence, opportunity should be given to the tenants also to adduce further counter evidence. I feel that fairness demands that if landlady is adducing further evidence, the tenants should also be enabled to adduce further counter evidence.
56. The result of the above discussion is as follows: -
(i) The judgments and decrees of the Court below declining eviction on the ground overhauling are confirmed.
(ii) The judgments and decrees of the Court below declining eviction on the ground of default in payment of rent passed in Civil Suits No. 05/2008, No. 01/2008 and No. 04/2008 are also confirmed.
(iii) The judgments and decrees of the Court below in Civil Suits No. 02/2008 and No. 03/2008 declining the eviction of the ground of default in payment of rent are set aside and allowing RFAs No. 03/2013 and No. 04/2013, eviction decree is passed against the respondents in these two appeals on the ground of default in payment of rent. 48
(iv) The judgment in all the five suits declining eviction on the ground of own occupation are set aside and all the civil suits are remitted back to the trial Court, namely, the Court of District Judge, South & West at Namchi for a fresh decision on the eligibility of the landlady to obtain eviction on the ground of own occupation.
57. The trial Court is directed to permit the landlady to adduce whatever further evidence she wants to adduce in support of her claim for eviction on the ground of own occupation. The trial Court is directed to permit the tenants also to adduce whatever counter evidence they want to countering the additional evidence to be adduced by the landlady pursuant to this judgement of remit.
58. Now, the question is whether, even as the Court below is reconsidering the landlady's claim for eviction on the ground of own occupation, the landlady should be permitted to evict the respondents in RFAs No. 03/2013 and No. 04/2013 (defendants in Civil Suits No. 02/2008 and No.03/2008). I am of the view that the execution of the above eviction order alreadypassed against those two tenants can be kept in abeyance till the District Court pass its revised judgment pursuant to this judgement of remit subject to the following conditions: -
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(i) The respondents in RFAs No. 02/2013 and No.04/2013 pay the entire rent which is now found by me to be due from them to the landlady, till date, either directly to the landlady or through the landlady's counsel in the Court below within a period of 6 (six) weeks from today and produce receipt before the Court below.
59. Having imposed such a direction against the respondents in RFAs No. 03/2013 and No. 04/2013, I must notice that it is a fact that the amounts due to the landlady by way of rent in respect of the building occupied by the tenants in RFAs No. 05/2013, No. 06/2013 and No. 07/2013 are presently in the hands of those respondents only. I have declined order of eviction to the landlady in those 3 cases because I found that the landlady refused to accept the rent. However, the rent amount belongs to the landlady and the respondents have an obligation to pay the rent. The tenants in RFAs No. 05/2013, No. 06/2013 and No. 07/2013 are present in the Court hall and I asked them whether they will be willing to discharge the arrears. All of them told me that they will be willing to pay the same but they requested for some reasonable time for paying the rent. Therefore, I direct the respondents in RFAs No. 05/2013, No. 06/2013 and No. 07/2013 (defendants in Civil Suits No. 05/2008, No. 01/2008 and No. 04/2008) to pay the entire arrears of rent which is payable to the landlady either directly to the landlady or through the landlady's 50 counsel in the Court below within a period of 5 (five) months from today and produce receipts before the Court below.
60. The parties will enter appearance before the District Court, South and West at Namchi on 19.08.2013. The Court below is directed to expedite matters and pass a revised judgment in all the cases early and at any rate within four months of the parties entering appearance.
61. All the appeals are allowed to the above extent. No costs.
Sd/-
(Pius C. Kuriakose) Chief Justice 26.07.2013