Bombay High Court
Shri Yeshwant Nono Naik (Deceased) ... vs Shri Joao Menino Fernandes And Ors. on 14 September, 1998
Equivalent citations: (1999)101BOMLR298
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
JUDGMENT R.M.S. Khandeparkar, J.
1. By the present Petition, the Petitioners are challenging the Judgment and Order dated 14th April, 1997, passed by the Administrative Tribunal in Eviction Appeal No. 24/93. By the impugned Judgment, the Tribunal has set aside the Judgment and Order dated 22nd July, 1993, passed by the Additional Rent Controller, Ponda, in Case No. BLDG/21/91 and has allowed the application filed by the Respondent No. 1 under Section 23(A)(3) of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 hereinafter called "the said Act".
2. The facts in brief relevant for the decisions are that the Respondent No. 1 herein is the landlord in respect of a house bearing No. 372 comprising of two portions, and situated in the property of the Respondent No. 1 at Savoi Verem within the taluka of Ponda. Some time in the year 1960, the predecessor of the Petitioners herein by name Yeshwant Nono Naik was leased a portion of the said house for a period of eleven months for the purpose of running tea and coffee and sweet stall therein. After the expiry of the said lease period, the lease was being renewed from time to time. The lease was for commercial purposes and the leased premises consist of two rooms with a verandah on the front side and a structure with thatched roof on the rear side. The rear side structure having thatched roof forms the kitchen of the said premises. The Respondent No. 1, the landlord of the house, was employed in Police Department and on account of his service exigencies, had been residing at Quarter No. 55 of Monte Pio, Altinho, Panaji. The Respondent No. 1 was to retire on attaining superannuation age on 31st October, 1990. It is the case of the Respondent No. 1 that since 1988 he had been informing the Petitioners predecessor that the premises let out to the Petitioners would be required for personal occupation of the Respondent No. 1 on his retirement. A legal notice calling the Petitioners predecessor to vacate the premises was served by the Respondent No. 1 on 8th May, 1989 and thereafter on account of failure to comply with the said notice, the Respondent No. 1 filed the Eviction Proceeding being Case No. BLDG/21/91. It is to be noted that before filing the said proceeding, the Respondent No. 1 had filed another proceedings some time in October, 1990. However, the same were withdrawn in August, 1991. The present proceeding was initiated on 6th September, 1991. It is also not in dispute that the Respondent No. 1 actually retired from service on 22nd January, 1991.
3. The proceedings before the Rent Controller were contested by the Petitioners predecessor on the ground that the Respondent No. 1 was already in possession of the remaining portion of the suit house and the same had remained closed since 1988 and that the Respondent No. 1 does not require the suit premises. It was also the contention of the Petitioners predecessor that the Respondent No. 1 is having another house in the village for his occupation and, therefore, he is not entitled to seek eviction of the Petitioners predecessor from the suit premises. It was also the case of the Petitioners predecessor that there was no bona fide need of the premises by the Respondent No. 1. The Rent Controller after considering the rival contentions held that the Respondent No. 1 being in possession of part of the house in question, he was not entitled to seek eviction of the Petitioners from the suit premises and, therefore, the application was dismissed. Being aggrieved, the Respondent No. 1 preferred Eviction Appeal No. 24/93 before the Administrative Tribunal. The Tribunal while setting aside the finding of the Rent Controller allowed the application filed by the Respondent No. 1 by the impugned Judgment and Order.
4. At this stage, it is also necessary to note that the Respondent No. 1 had filed one more proceedings for eviction of the Petitioners predecessor being BLDG/20/91 under Section 22(2)(b)(ii) of the said Act on account of change of user of the premises. The said application was allowed by the Rent Controller, which order was sought to be challenged by the Petitioners before the Administrative Tribunal. However, the same was also dismissed by the impugned Order. The Petitioners have filed a separate Petition in that regard and is being dealt with separately.
5. Shri S.G. Dessai, learned Senior Advocate appearing for the Petitioners while assailing the impugned Judgment submitted that the Tribunal totally misconstrued and misinterpreted Section 23(A)(3) as well as proviso thereto while allowing the Appeal filed by the Respondent No. 1. Drawing my attention to the proviso to Section 23(A)(3), he submitted that the proviso clearly imposes restriction on a landlord from seeking recovery of possession of more than one premises for residential purposes and, therefore, once it is clear that the Respondent No. 1 was already in possession of the part of the house in which the suit premises exists, it was not permissible for Respondent No. 1 to seek eviction of the Petitions from the suit premises under Section 23(A)(3). There are clear findings by both the authorities below that the suit premises were let out separately from the remaining portion of the house and, therefore, for all purposes, the house in question was let out in parts and as such clearly attracts restrictions imposed upon the landlord in the proviso to the said Section against the eviction of the tenants in occupation of different parts of the same house. In support of his submission, the learned Advocate sought to rely upon the Judgment of the Apex Court in the matter of Narain Khamman v. Parduman Kumar Jain AIR 1985 SC 4 : (1985) 2 D.L.T. 35 : (1985) 1 Rent C.R. 67 : (1985) 1 Rent L.R. 166, and S.P. Jain v. Krishna Mohan Gupta and Ors. AIR 1987 SC 222 : (1987) 1 SCJ 38 : (1987) 1 SCC 191 : (1987) 1 rent C.R. 347 as well as that of the Himachal Pradesh High Court in the matter of B.N. Gupta v. Ganga Ram AIR 1994 H.P. 126 : 1994 (2) Rent C.R. 133 : (1984) 1 Rent l.R. 484. He further submitted that while considering an application for eviction of a tenant under Section 23(A)(3) of the said Act, the Authorities are required to consider the suitability of the premises for a landlord. The Tribunal however did not at all consider this aspect of the matter. He then submitted that the application of the Respondent No. 1 clearly disclosed that the Respondent No. 1 was already in possession of the part of the house and by virtue of the present application for eviction, the landlord was actually seeking an additional accommodation for him. Such a relief is not available under Section 23(A)(3) and for that purpose, the landlord ought to have filed a separate application in terms of Section 23(3) of the said Act. The Tribunal, having not considered this point at all, has acted with material irregularity while allowing the application for eviction filed by the respondent No. 1. He further submitted that the findings arrived at by the Tribunal are totally perverse and not borne out from the record.
6. Shri Sudesh Usgaonkar, learned Advocate for the Respondent No. 1 on the other hand submitted that there has been absolutely no illegality committed by the learned Tribunal while allowing the Appeal filed by the Respondent No. 1 and the Tribunal after considering all the materials on record has arrived at correct findings. He submitted that the proviso to Section 23(A)(3), no doubt puts embargo on the landlord from seeking recovery of possession of more than one residential premises but it nowhere bars the landlord from seeking part of the house in case where such eviction is necessary from the point of suitability of residence for the landlord. The proviso speaks about the eligibility of the Petitioners to seek eviction. He further submitted that but for the proviso, the landlord could have filed more than one application for recovery of premises on the ground contemplated under Section 23(A)(3) and it is because of the said proviso that such an exercise by the landlord is prohibited. As regards the suitability aspect of the place, the learned Advocate submitted that it is an undisputed fact that the Respondent No. 1 had produced necessary certificate In terms of the provisions contained in Section 23(A)(3) to justify his claim regarding suitability in relation to the suit premises and the presumption arisen therefrom was never sought to be rebutted by the Petitioners and, therefore, it is too late for the Petitioners to make any grievance about the same. Once, the Respondent No. 1 being landlord has produced necessary certificate in terms of the provisions contained in Section 23(A)(3), it was necessary for the tenant/Petitioners to produce necessary evidence on record to disprove the case of the landlord/Respondent No. 1 and the Petitioners having; failed in that regard, the suitability aspect haying been duly established in terms of Explanation 2 to Section 23(A)(3), no fault can he found with the Order of the Tribunal in that respect. He further submitted that the records disclose that the Petitioners had never challenged the suitability aspect either before the Rent Controller or the Tribunal. In any case, according to the learned Advocates, there are clear findings arrived at by the Tribunal on all those aspects on analysis of the materials on record and, therefore, it is not permissible for the Petitioners to invite the High Court in its writ jurisdiction to interfere with those findings of facts. He further submitted that the decisions relied upon by the Petitioners were given in totally different set of facts as well as different provisions of law applicable thereto and, therefore, are of no assistance to the Petitioners. The learned Advocate sought to rely on the decisions of the Apex Court in the matter of Shri Balaganesan Metals v. M.N. Shanmugham Chetty and Ors. , in support of his contention as well as in the matter of Babhutmal Raichand Oswal v. Laxmibai R. Tarte and Anr. .
7. Chapter V of the said Act deals with control on eviction of tenants by the landlord. Section 21 provides that a tenant shall not be evicted except in accordance with the provisions of the said Act. Proviso thereto provides that whenever tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller has first to decide whether such denial or claim is bona fide and record finding to that effect and the landlord thereafter can sue for eviction of the tenant in a Civil Court. The Controller can proceed with the matter and order eviction once it is found that the denial or claim was not bona fide.
8. Section 22 prescribes various grounds on which a landlord can seek eviction of a tenant. They include ground for (a) non payment of rent, (b) subletting of leased premises and change of user, (c) acts of damage and material alteration, (d) nuisance, (e) acquisition of another residence by tenant, (f) failure to occupy the premises by tenant for a period of four months without reasonable cause and (g) denial of title and claim of permanent tenancy. The said Section provides that when such proceedings are initiated by the landlord, the Controller, after giving the tenant a reasonable opportunity to show cause against the application, shall decide the matter.
9. Section 23 deals with the matters pertaining to the right of the landlord to obtain possession for personal occupation. Sub-section 1 provides that in case of residential buildings, a landlord who is not occupying such a residential building in the city, town or village may seek eviction of the tenant for his personal occupation and in case the landlord is having more than one building in a city, town or village, he can seek the eviction of tenant from another building if he bona fide requires the same for his own occupation. There are various provisions contained therein which imposes various restrictions on the landlord while seeking eviction of a tenant. Sub-Section 3 provides that a landlord who is occupying only a part of the residential building may notwithstanding anything in Sub-Section (1) apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his own use or for the use of any member of his family.
10. Section 23A deals with the right to recover immediate possession of the premises in case of certain persons. Sub-section 1 thereof empowers the landlord who is a Government employee to seek eviction of a tenant from a premises in case where such premises are required by him on account of order of the Government to vacate the residential accommodation allotted to such landlord on account of his employment. The proviso thereto provides that the right assured under Section 1 will not be available to the landlord to recover possession of more than one dwelling house.
11. Sub-Section 3 of Section 23A deals with rights of certain specified category of Government employees who are entitled to recover possession of the leased premises in certain specified situations. On plain reading of Section 23A Sub-Sections 3A and 4 along with other provisions contained in Chapter V of the Rent Act, it is apparent that the scheme of law under Section 23(A)(3) is totally different from the remaining provisions contained in the said chapter. In fact, Sub-Section (3) r/w (3A) and (4) of Section 23A constitutes a Code by itself within the said chapter of the said Act. Sub-Section 3(a) empowers a retired Government employee of specified category to recover the possession of the premises let out by him on the ground of bona fide need of such landlord on account of his retirement from the Government services. Sub-Clause (ii) of Clause (a) of Sub-Section 3 r/w Clause (ii) of Explanation-1, provides that a certificate granted by the concerned authority regarding the need of suitable residence for the retired Government employee would be conclusive evidence of the fact stated in such certificate. Clause (b) of said Sub-Section 3 deals with the right of widows of the specified category persons to recover the possession of the premises let out to the tenants. By the provisions contained in Clause (c) the provisions of Sub-Section 3 are made applicable to all pending proceedings. Clause (d) makes it obligatory for tenants in such proceedings to continue to pay the rent regularly as and when it falls due or to deposit the same with the Controller. First proviso thereto provides that nothing in the said Sub-Section shall be construed as conferring a right on the landlord to recover possession of more than one residential building inclusive of any part or parts thereof when such a building is let out in part or parts. Second proviso thereto empowers the Controller to give reasonable period to the tenant to vacate the premises while passing the order of his eviction.
12. Sub-Section 3A makes detail provisions regarding the procedure to be followed by the Rent Controller in cases where an application under Section 23(A)(3) is filed. It specifies that a normal procedure which is prescribed under the said Act and the Rules made thereunder will not be applicable to such proceedings and a special procedure is provided for under the said Sub-Section. The procedure provided, thereunder is of summary nature wherein the burden is cast upon the tenant to disprove the claim of the landlord. Clause (e) of the said Sub-Section 3A provides that when summons in respect of such proceedings is served upon the tenants, it is obligatory upon the tenant to file an affidavit within 15 days from service of such summons disclosing the grounds on which the tenant desires to contest the application for eviction and to obtain leave from the Controller to contest the proceedings. The said Clause further provides that in case of default of appearance of the tenant in pursuance of the summons or in obtaining such leave, the statement made by the landlord in his application for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled for an order for eviction of the tenant on that ground alone. Clause (f) thereunder provides that Controller may give the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession under Sub-Section (3). Upon the leave being granted the proceedings have to commence on a day not later than one month from the date of leave being granted to the tenant and shall proceed day-to-day till the hearing is concluded and the application is decided. The provision in Clause (g) of said Sub-Section is clear in that regard. Clause (h) debars filing of Appeal against the order of recovery of possession passed by the Controller in terms of said procedure under Sub-Section (3A). The proviso empowers the High Court to call for records to satisfy itself that the order passed by the Controller under said Sub-Section is according to law. Sub-Section 4 provides that the provisions of Section 25 of the said Act shall be applicable to such proceedings subject to what has been provided in Sub-Sections 3 and 3A.
13. It is thus clear that the proceedings under Sub-Section (3) of Section 23A are not to be dealt with in the manner the other proceedings for eviction of a tenant are to be dealt with under the said Act. These are special provisions made to meet special situations and the procedure, for the same is a self contained Code comprised of Sub-Sections 3A and 4 of Section 23A of the said Act. Bearing in mind, this aspect of the matter one has to analyse materials on record and consider the matter in question.
14. The first contention of the Petitioners is in relation to the first proviso to Sub-Section 3. As already seen above, it provides that nothing in the Sub-Section shall be construed as conferring a right on a landlord to recover a possession of more than one residential building inclusive of any part or parts thereof, if it is so let out. The contention of the learned Advocate for the Petitioners is that the term building has been clearly defined in Clause 2(e) to mean a building or any part thereof. He has also submitted that the proviso is to be understood bearing in mind the provision in the main Sub-Section 3 having been brought into force to meet special eventualities and special cases. Therefore, according to the learned Advocate, the proviso is to be considered to mean that the same debars the landlord from recovering the possession of any part of the building when the remaining part of the same building is either already recovered by him or in his possession. In that connection, he also sought to refer to Sub-Section 3 of Section 23 under which a landlord is entitled to recover additional area when the area in his occupation is not sufficient to meet his needs. As against this, as already seen above, Advocate for the Respondent No. 1 submitted that the provisions only debar the landlord from recovering more than one residential building. He has submitted that the definitions of various terms given under Section 2 are to be understood in the manner as are defined unless the context requires otherwise.
15. There is no doubt that the term "building" has been defined in Clause 2(e) to be any building or part of the building which is or is intended to be let out separately for use as residence or commercial premises and also includes garden. Moreover, as rightly submitted by the Advocate for the Respondent No. 1, the Section 2 clearly provides that the definitions hereunder are to be understood in the manner they are defined unless the context requires otherwise. Equally, it is true that whenever Legislature uses a similar expression in different parts of the statute the presumption is that the said expression is used in the same sense throughout. However, the presumption is weak and is readily displaced by the context in which the same expression is used in different parts of a statute. When the same expression is used in similar context at different places in a statute, it would carry the same meaning at all places but not necessarily so in all other cases. At times, the same expression may be used in different places in the same clause in the same Section of a statute, yet, it may not have the same meaning at each place having regard to the context of its use.
16. The term "one residential building" in the first proviso to Sub-Section 3 of Section 23A cannot be given the meaning as has been defined in Section 2(e) of the said Act. The expression "one residential building" would be a building or a house or a unit as such with all the necessary facilities which are suitable for a residential accommodation. Moreover, "a suitable residential accommodation" is again a relative term and its connotation will depend upon the facts of each case. Considering this, the term "one residential building" cannot be understood in the same sense as is understood in various other parts of the same statute under the same Act. If, the expression "one residential building" is meant to include the building as well as part of the building, then there was no need for the Legislators to specifically provide in the said proviso that the said expression would be "inclusive of any part or parts thereof. The very fact that the Legislature in its wisdom' has used the term "building" along with the expression "inclusive of any part or parts thereof" shows that the term "building" is not to be understood in the same manner as is defined in Clause 2(e).
17. The various provisions contained in Sub-Section 3(a) itself shows that the various terms which are used in the said Sub-Section cannot be understood in the same manner as they are defined in Section 2 of the said Act. It is pertinent to note that Sub-Section 3 does not refer to the term "building" while empowering the landlord to seek eviction of a tenant but uses the term "any premises". Sub-Clause (ii) of Clause (a) of said Sub-Section refers to a term "suitable residence". Clauses (f) and (h) of Sub-Section (3A) refers to the expression "residential building". Sub-Section 1 of Section 23(A) refers to "any premises" whereas the proviso thereto refers to the expression "dwelling house". It is, therefore, clear that the various terms, used in the said Section 23A which deal with special and specific situations as already seen above, cannot be understood in the same context as they are understood in the remaining part of the said Act.
18. Therefore, when we read the said first proviso to Sub-Section (3) of Section 23A, it is to be understood to convey that it prohibits the recovery of possession by the landlord of more than one residential building. That would not debar a landlord from seeking eviction of a tenant in occupation of a part of such building solely on the ground that the landlord is in possession of the remaining portion of the suit building. We cannot read this proviso along with Sub-Section 3 of Section 23 of the said Act. This proviso is restricted to the eviction proceedings contemplated under Section 23(A)(3). The proviso applies strictly to the special provisions made under Sub-Section 3 of Section 23(A). Therefore, the submission on the part of the Petitioners that the Respondent No. 1 being in possession of a portion of the said building would not be entitled to seek recovery or possession of the remaining portion of the suit house is devoid of substance and, therefore, is to be rejected.
19. In Narain Khamman v. Parduman Kumar Jain (supra), the Apex Court was dealing with the matter pertaining to Section 14(A)(1) of the Delhi Rent Control Act, 1958. Section 14(A)(1) which transcribed in the said Judgment in para 9, deals with a situation as contemplated under Section 23(A)(1) of the said Act and not under Section 23(A)(3). The observations and the finding and the decision of the Apex Court in the said case has to be understood in relation to the provisions contained in Section 14(A)(1) of the Delhi Rent Control Act which are in pari materia with the provisions contained in Section 23A(1) of the said Act and, therefore, the same cannot be applied to the cases under Section 23(A)(3). The Apex Court therein while dealing with the provisions under Section 14(A) of Delhi Rent Control Act has held that the object is to provide an additional ground of eviction to a landlord who is deprived of residential accommodation which was earlier allotted by the Central Government or Local Authority. All the observations, in the said decision are made in the facts of the peculiar case. Besides, the said decision is strictly in relation to Section 14(A)(1) of the Delhi Rent Act which corresponds to Section 23(A)(1) of the said Act. This is apparent from the question formulated by the Apex Court for consideration in the said decision which reads thus:
Can such a person (person having two or more than two dwelling houses) file an application under Section 14(A)(1) on the ground that a dwelling house owned by him either in his own name or in the name of his wife or dependent child and available for his residence is not reasonably suitable for his residential accommodation?
20. In the matter of S.P. Jain v. Krishna Mohan (Supra) the decision was in relation to Section 24(B)(1) of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972. The said Section is in pari materia with Section 14(A)(1) of the Delhi Rent Control Act, 1958. In other words. Section 24(B)(1) of U.P. Urban Buildings is in pari materia with Section 23(A)(1) and not Section 23(A)(3). Hence, this decision can also be of no help to the Petitioners. This is also apparent from what has been held by the Apex Court in para 25 therein. It is held thus:
After 1962 the mother of the appellant resided in the portion in the occupation of the landlord now used separately and independently and the same is in occupation of the appellant and at that time when the mother of the appellant was alive the appellant used to occupy the said portion. In our opinion the conduct of the parties is relevant in considering whether parts or portions of a building could be a dwelling house. It may also be mentioned that after the death of the mother of the appellant the portion was separately let out and a tenant used to occupy the said portion separately. Here in the instant case, Shri Mehrotra, Counsel for the appellant, however, stressed that in order to be a dwelling house or residential accommodation, it must be capable of being separately enjoyed and separately locked up. It is true that without that facility, the concept of safe and separate dwelling gets hampered. Yet in view of the fact that premises can be enjoyed with common facilities for dwelling purposes would constitute a separate and independent dwelling houses. It has to be borne in mind that in this case the issue is not whether the premises is sufficiently comfortable or whether the portion in question was sufficiently comfortable for dwelling or residence of the appellant or a party but the question is whether the house or the portion can be separately considered to be dwelled in. If the portion in the occupation of the appellant could not be separately dwelled in by the appellant, it was only then that the extraordinary provisions of Sections 24(A), 24(B) and 24(C) could be resorted to.
(Emphasis supplied) Moreover, one of the observations thereunder by the Apex Court is certainly relevant while considering the aspect of the suitability, which shall be referred to while dealing with the said point.
21. As regards the decision of Himachal Pradesh High Court in the matter of B.N. Gupta v. Ganga Ram (supra), there is no doubt that the learned Single Judge of the said High Court has held that the proviso to Section 15 of H.P. Urban Rent Control Act, 1987 has to be read in such a manner as to harmonise the provisions contained in Sub-Section 2, which says that it shall not be construed as conferring a right upon any person to recover possession of more than one residential building. In case a landlord happens to be in occupation of a residential building within the local area concerned, owned and possessed by him or his spouse, it cannot be construed that under Section 15(2), a right has been conferred on him to seek tenants eviction from one more additional residential unit in the garb of fulfilling his intention that he intends to reside therein. However, it is pertinent to note that all these observations of the learned Single Judge have been made after considering the special scheme of law which provides a special procedure for the speedy recovery of possession in case of specified category persons. No doubt, there is a reference to the suitability aspect of the residence. Moreover, more stress has been given to the aspect of bona fide need of the landlord. This is apparent from what is held by the learned Single Judge in para 35 and the same reads as under:
In such like situations, the claim of landlord in seeking additional accommodation over and above the accommodation already occupied by him within the urban area where he or his spouse possess any other accommodation would not be a bona fide act. The fact that there is no reference to the word bona fide requirement in Sub-section (2) of Section 15 of the Act does not absolve the specified landlord from proving that this claim for accommodation is bona fide or the tenant from showing or urging that it is not bona fide. It is absolutely necessary and otherwise also appears to be appropriate and reasonable that every claim for eviction against a tenant must be a bona fide one. Having regard to the context in which a provision appears and the object of statute in which the said provision is enacted, the Court should construe it In a harmonious way to make it meaningful. An attempt must always be made so as to reconcile the relevant provisions and to advance the remedy intended by the statute.
(Emphasis supplied)
22. Moreover, if one reads along with this Judgment Sub-Section 4 of Section 23A of the said Act, it is apparent that the provisions of Section 25 of the said Act are applicable subject to what is provided in Sub-Sections 3 and 3A of Section 23A of the said Act. In other words, the question of suitability of the premises to the landlord as specifically provided under Section 3A has to be understood to have upper hand vis-a-vis the issue of bona fide need of the landlord which is required to be considered under Section 25 of the said Act. There can be no doubt that the aspect of bona fide need is required to be considered in all the proceedings for eviction of tenants on the ground of personal requirement of the premises to the' landlord. However, once a landlord seeks eviction of a tenant under Section 23A(3) and produces a certificate regarding the need of suitable residence, such a certificate enjoys presumptive value under Clause (ii) of Explanation 1 and, therefore, the burden lies upon the tenant to disprove the said presumption. In that context, the question of bona fide need of the landlord is to be presumed in favour of the landlord unless it is rebutted by the tenant by producing cogent evidence. Considering these provisions in the said Act, the decision of the Himachal Pradesh High Court cannot be of any assistance to the Petitioners in the case in hand.
23. The submission of the learned Advocate for the Petitioners as regards non maintainability of the application for recovery of the possession of the suit house by the Respondent No. 1 are, therefore, to be rejected. As regards the submission regarding suitability and the grievance of the Petitioners there are no proper findings arrived at by the Trial Court. It is evident from plain reading of the Judgment of Tribunal as well as of the Rent Controller that the Respondent No. 1 had produced required certificate regarding need of suitable residence for the Respondent No. 1, therefore, it was required for the Petitioners to rebut the presumption arising from the said certificate. As rightly submitted by the Advocate for Respondent No. 1, even the reply filed by the Petitioners contesting the proceedings does not disclose any challenge to the claim of the Respondent No. 1 regarding the requirement of the suit premises for the personal occupation of the Respondent No. 1 on account of the same being suitable residence, along with the remaining portion of the house in question, to the Respondent No. 1. Besides the Tribunal on the detail analysis of the materials on record has held that the entire house bears No. 372 and consists of four rooms, one verandah and one kitchen and this is a clear indication of the fact that the entire house is one house and one residential premises. This finding coupled with the certificate issued by the authority as required under the law and produced by the Respondent No. 1 apparently establish as rightly held by the Tribunal that the landlord does not possess any other suitable residence. The Tribunal has also held that the; landlord has deposed that he has a family of eight members including his wife and that two vacant rooms of the said house are not sufficient in any case for their occupation and, therefore, such situation proves the bona fide claim of the landlord for suitable accommodation and the same cannot be considered as unreasonable. Considering these findings arrived at on the analysis of the materials on record, it cannot be said that the suitability aspect was not considered or not proved.
24. The learned Advocate for the Petitioners did try to submit that the application by the Respondent No. 1 disclosed intention on the part of the Respondent No. 1 for additional premises and, therefore, it ought to have been in the nature of the application under Section 23(3) and not under Section 23A(3) of the said Act. The submission is devoid of substance. As already referred to above, the procedure under Section 23(A)(3) is a special procedure. The landlord is required to produce certain prima facie evidence regarding the need of suitable residence. Such an evidence is required to be rebutted by the tenant by seeking leave of the Controller. The proceedings do not disclose any such effort having been made on the part of the Petitioners to disprove the presumption arising from the said evidence produced by the Respondent No. 1. Besides as already seen above in the facts and circumstances of the case, it cannot be said to be an additional accommodation claimed by the Respondent No. 1.
25. In the result, therefore, the Petition fails and is hereby dismissed. Rule is discharged. No order as to costs.