Chattisgarh High Court
Gopal Das vs Kasturi Devi Begani on 7 January, 2002
Equivalent citations: 2002(1)MPHT43(CG)
ORDER Fakhruddin, J.
1. This revision is directed against the order dated 15-6-2001 passed by the Rent Controlling Authority, Raipur.
2. The facts in brief are that the respondent widow filed a petition for eviction of the present applicant from the suit premises under Section 23-A (b) of the M.P. Accommodation Control Act on the ground that she is under the special category being a widow as her husband had died in March, 1989, that she has become handicapped and further that she has two sons namely Manoj and Manish and as such it was contended that the accommodation which is a non-residential one is bona fide required for carrying on business.
3. The defendant/present applicant denied the need and contended that there was no bona fide requirement. During the pendency of the petition and application for grant of leave to defend was filed. The said application was allowed.
4. Learned counsel for the applicant contended that the order passed by the Rent Controlling Authority is illegal and contrary to law.
5. On the other hand, learned counsel for the landlady supported the order.
6. It is useful to consider the evidence as well since the order has been assailed.
7. The plaintiff landlady examined herself A.W. 1, Manoj as A.W. 2, and Manish as A.W. 3. The landlady in her deposition has clearly stated about the need. It has come in evidence that second son Manish is in service. It has further come in evidence that she herself wants to start business. She became widow at the age of about 45 years, she has testified her need and her contention is that she has to live the life and for that livelihood is required, for which she has to carry business. A.W. 2 Manoj has also testified the need. In his deposition he has stated that her mother is living with his younger brother Manish. He further stated that her mother has filed the suit as she wants to carry on the business with Manish. A.W. 3 Manish has also testified the need. In his deposition he has stated that his mother wants to carry on the business of grocery with him on the suit shop in dispute.
8. The defendant tenant examined himself as N.A.W. 1, Kishore Sharma as N.A.W. 2 and Azim Khan as N.A.W. 3. They denied the bona fide need of the plaintiff. N.A.W. 1 Gopaldas in his deposition has stated that beside the shop in dispute there is one shop measuring 20' x 25'. There is a shutter in the said shop and in the said shop the landlady may start business. N.A.W. 2 Kishore Sharma in his deposition has supported the statement as aforesaid N.A.W. 1 Gopaldas. N.A.W. 3 Azim Khan in his deposition has stated that he knows the applicant and the non-applicant from the last 15 years. He has also supported the statements of Gopaldas and Kishore Sharma.
9. The learned Rent Controlling Authority discussed the matter in great detail, while appreciating the evidence and considering the documents filed with the petition i.e., death certificate of the husband of the landlady (Ex. P-1), certificate of handicapped (Ex. P-2) receipts of the rent of the premises (Exs. P-3 & P-5) and the legal notice (Ex. P-4) and the documents filed by the defendants i.e., photographs with negatives of the spot and has held that the landlady in her deposition clearly stated about the genuine need and in spite of searching cross-examination nothing has been brought to discredit her version. The learned Authority has further held that the defendant and his witnesses have not been able to demolish the version of the plaintiff.
10. The question relates to bona fide requirement. The Apex Court has considered the term "bona fide" in the case of Shiv Sarup Gupta v. Mahesh Chand Gupta, (1999) 6 SCC 222, and held as under :--
"......... 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 the 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, hones 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........."
11. In the aforesaid case in Para 13, it was further observed that:--
".......... Once the Court is satisfied of the bona fides of the need of the landlord, for the 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 the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against."
12. The Apex Court has further in the case at Ragavendra Kumar v. Firm Prem Machinery and Co., reported in 2000(1) M.P.H.T. 501 = 2000(1) JLJ 186, relying on the decision taken by it in Prativa Devi v. T.V. Krishnan, (1996) 5 SCC 353, held in Para 10 of the judgment that :--
"............ It is a settled position of law that the landlord is the best Judge of his requirement for residential or business purpose and he has got complete freedom in the matter."
13. The Apex Court in the case of John Mathai Abraham v. British Physical Lab. India Ltd. (2001 AIR SCW 4661) has held as under :--
".......... Merely because the appellant is living in a room of the huge building which does not exclusively belong to him, it cannot be said that his requirement to occupy the premises for his residence and professional requirement is not reasonable and bona fide. In our view, being in occupation of a portion of building holding a fractional undivided share, is no bar to invoke the provision of Section 21 (1) (h) of the Act. In this view of the matter, we set aside the order under challenge and the restore the order of the learned Rent Controller, in H.R.C. No. 10541 of 1989, dated July 5, 1995."
14. The case is therefore to be examined from that point of view, keeping in mind the provisions of Section 23-A of the Act and further the provisions of Section 23-D (3), which stipulates that in respect of an application by a landlord, it shall be presumed, unless the contrary is proved, the requirement by the landlord with reference to Clause (a) or Clause (b) as the case may be of Section 23-A us bona fide.
15. Having considered the evidence adduced by the landlady, the documentary evidence as well as the evidence adduced by the tenant as discussed hereinabove, the finding of the bona fide requirement well merited does not deserve for interference.
16. At this stage learned counsel for the applicant submitted that sometime may be granted to vacate the suit premises. Learned counsel for the non-applicant submitted that certain terms be imposed.
17. Having considered the facts and circumstances of the case, ends of justice would be met if the time upto 31-3-2000 is granted to the tenant/applicant to vacate the premises in dispute and hand over the vacant peaceful possession to the landlady subject to the following conditions:--
(i) That the applicant/tenant shall furnish an undertaking duly supported by an affidavit within one month from today to the effect that he shall vacate the premises in dispute and handover the vacant peaceful possession on or before 31st March, 2002 to the landlady.
(ii) That the tenant shall deposit all arrears of rent, if any, within one month from today and he shall continue to deposit monthly rent till the accommodation is vacated.
(iii) That if the undertaking is not complied with and the accommodation, as directed above, is not vacated within the specified time, then in that situation, the Executing Court shall proceed with the matter on 1-4-2002 and the applicant/tenant may be proceeded with for the disobedience of the order of this Court apart from other proceedings.
18. In view of what has been stated above, the revision fails and is dismissed.
19. Civil Revision dismissed.