Madhya Pradesh High Court
Rajesh Pandey Alias Manish Pandey vs Geeta Devi Poddar on 29 July, 2015
CR-135-2015
(RAJESH PANDEY ALIAS MANISH PANDEY Vs GEETA DEVI PODDAR)
29-07-2015
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
Civil Revision NO. 135 OF 2015
Rajesh Pandey
Versus.
Geeta Devi Poddar
For Petitioner : Shri Amit Sahni, Advocate.
For respondent No. : Shri R.K. Verma, Senior Advocate
assisted by Shri Ashish Kumar Nema.
ORDER
(29.07.2015)
1. The petitioner has filed this revision petition against the order dated 09.03.2015 (Annexure-A-11) passed by the Rent Controlling Authority in Case No.08/A-90/2012.
2. The respondent filed a suit for eviction under Section 23-J of M.P. Accommodation Control Act 1961 (hereinafter in short 'the Act 1961'). She pleaded that she is aged about 88 years. Her husband was died on 06.07.2007 and she belongs to special category of landlord as defined under Section 23-J of the Act 1961 hence, she is entitled to file the suit for eviction before the Authority.
3. The suit accommodation was rented out initially at the rate of Rs.20/- per month. Subsequently, rent of the accommodation was enhanced at the rate of Rs.75/- and Rs.500/- per month respectively. The suit accommodation was rented out for residential purpose, however, the petitioner had changed the purpose and also constructed two shops and has been doing business in the aforesaid shops. The respondent has been suffering from the diecease of paralysis and she has been residing in the second floor along with his son in her house No. 888, in front of Police Station Kotwali, Ghamandi Chowk, Jabalpur. It is not possible for her to climb the stairs. She received right of ownership of the house in a partition which was made between the parties on 29.03.2011. Earlier an agreement was executed with one Builder to sell the property, however, the agreement was subsequently cancelled. The respondent pleaded that the suit accommodation is required her for bonafide need.
4. The petitioner/defendant denied the claim of the plaintiff/respondent. The defendant submits that the plaintiff is not eligible to invoke the jurisdiction of the authority. The plaintiff does not belong to special category of landlord hence, the suit filed by the respondent-plaintiff is not maintainable. He further pleaded that he had constructed the shops in the premises with the consent of the landlord and his father. The defendant further denied the fact that the plaintiff's has been suffering from the ailment of paralysis.
5. The Rent Controlling Authority after appreciation of evidence has held that the plaintiff is entitled to invoke the jurisdiction of the authority being a specified category of landlord under Section 23-J of the Act 1961. There is a bonafide need to the plaintiff. She is a old lady and has been suffering from ailment of paralysis hence it is not possible for her to live in the second floor of the house. On the basis of aforesaid findings, the authority allowed the suit in favour of the respondent and passed an order of eviction.
6. Learned counsel appearing on behalf of the petitioner has submitted that the provisions of Section 23-J of the Act 1961 are not applicable in the present case. The respondent-plaintiff failed to prove her bonafide need of the suit accommodation. Actually, she wants to sale the property to other persons and Builders. Earlier an agreement was executed in this regard. That agreement was not cancelled by the valid agreement hence, there is no bonafide need to the plaintiff. In support of his contentions learned counsel relied on the following judgments.
(1) Dilip Baghela vs. Virendra Kumar Choubey, reported in 2011 (4) MPLJ 191.
(2) Kasturi Devi Jain vs. Union Bank of India and others reported in 2011 (4) MPLJ 195.
(3) Chainmal vs. Rani Bai, reported in 2004 (4) MPLJ 354. (4) Rahul Banerjee and others vs. State of M.P. Reported in 2004 (4) MPLJ 359.
(5) Shakuntala Bai and others vs. Narayan Das and others reported in AIR 2004 SC 3484.
(6) Baboolal Shrivastava vs. Smt. Jamuna Bai, reported in MPWN 1993 (1) Note 133.
(7) Chandrakant Shankarrao Machale vs. Parubai Bhairu Mohite reported in (2008) 6 SCC 745.
(8) Smt. Bismillah vs. Janeshwar Prasad and others reported in AIR 1990 SC 540.
(9) Ramti Devi (Smt) vs. Union of India reported in 1995 (1) SCC 198.
(10) Sulochana vs. Rajinder Singh reported in 2008 (15) SCC 538.
(11) Messrs Trojan & Co. vs. R.M.N.N. Nagappa Chettair reported in 1953 SC 235.
7. Learned Senior counsel appearing on behalf of the respondent opposed the admission of this revision petition. However, the revision petition is being heard on admission hence, it is not necessary to consider the arguments of the learned Senior counsel of the respondent.
8. Section 23-J of the Act 1961 defines landlord of special category. Section 3 prescribes Special Category, a widow or divorce wife. Proviso of Section 23-A of the Act 1961 prescribes restriction in regard to submitting an application by the landlord in regard to bonafide requirement. The proviso reads as under:-
â Eviction of tenants on Grounds of bonafide requirement. â 23-A. Special provision for eviction of tenant on ground of bonafide requirement .- Notwithstanding anything contained in any other law for the time being in force or contract to the contrary, a landlord may submit an application, signed and verified in a manner provided in Rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908) as if it were a plaint to the Rent Controlling Authority on one or more of the following grounds for an order directing the tenant to put the landlord in possession of the accommodation namely:-
(a) that the accommodation let for residential purpose is required âbonafideâ by the landlord for occupation as residence for himself or for any member of his family, or for any person for whose benefit, the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned.
(i) any accommodation which having been let for use as a residence is without the express consent of the landlord, used wholly or partly for any non-residential purpose;
(ii) any accommodation which has not been let under an express provision of contract for non-residential purpose;
(iii) That the accommodation let for non-residential purposes is requried âbonafideâ by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughers, if he is owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned:
Provided that where as person who is a landlord has acquired any accommodation or any interest therein by transfer, no application for eviction of tenant of such accommodation shall be maintainable at the instance of such person unless a period of one year has elapsed from the date of such acquisition.â
9. The proviso mandates that no application for eviction of a tenant shall be maintainable unless a period of one year is elapsed from the date of acquisition. The arguments of the learned counsel for the petitioner is that the petitioner acquired the right of ownership by way of partition on 29.03.2011 thereafter, she filed the application in October, 2011. Earlier the house was in the name of husband of the respondent. It was a coparcenory property. Her husband died on 06.07.2007 and thereafter, the suit accommodation came in the ownership of the respondent by way of partition dated 29.03.2011. The respondent had right of ownership in the coparcenory property and thereafter, her right of ownership become absolute after partition. It is well settled principle of law that a coparcenor can file a suit for eviction if other co-parcenors have no objection. In such circumstances, in my opinion the arguments advanced by the learned counsel for the petitioner that the application filed by the respondent was not maintainable before the Rent Controlling Authority has no substance.
10. It is further contended by the counsel for the petitioner that the registered agreement was executed with Builder in regard to sell of the property on 07.04.2011 and that agreement was not cancelled by the respondent hence, the need of the respondent was not bonafide. However, it is a fact that the aforesaid agreement was cancelled subsequently during the pendency of the criminal proceedings. Hence, it cannot be said that there is no bonafide need to the respondent.
11. From the evidence it is clear that the respondent is an old lady. She deposed that she has been residing on the second floor and she is having the ailment of paralysis. That fact has been proved by way of evidence. Even though looking to the age of the land lady which is near about 80-82 years, if she wants to reside on the ground floor, her need cannot be said to be whimsical or fanciful rather it is genuine because in old age, it is very difficult to climb the stairs. It is also very difficult to reside in the second floor. The tenancy is 100 years old.
12. Looking to the over all facts of the case, in my opinion, there is no illegality or irregularity in the order impugned. Consequently, I do not find any merit in this revision petition. It is hereby dismissed.
13. Looking to the facts of the case, the petitioner is granted three months time to vacate the suit accommodation subject to condition that the petitioner shall pay the regular rent, arrears of rent and future rent, if any, and submit an undertaking before the Rent Controlling Authority that he shall vacate the suit accommodation peacefully within a period of three months from today. No order as to the costs.
(S.K. Gangele) Judge Pb