Ramkishore vs Gyanchandra Jain on 18 March, 2010

[Cites 22, Cited by 6]

Madhya Pradesh High Court

Ramkishore vs Gyanchandra Jain on 18 March, 2010

1. This revision is directed by the applicant/ tenant under Section 23-E of Madhya Pradesh Accommodation Control Act, 1961 (in short "the Act") being aggrieved by the order dated 23.1.2006 passed in Case No. RCA 3/A- 90(1)/2003-2004 by the Rent Controlling Authority, Tikamgarh allowing the application of the respondent filed under Section 23-A (b) of the Act for eviction of the applicant from the shop described in such application situated in House No.12 of Ward No.10, at Tikamgarh.

2. The facts giving rise to this revision in short are that the respondent herein filed aforesaid application before the Rent Controlling Authority, Tikamgarh under Section 23-A (b) of the Act contending that the applicant herein being his tenant is in occupation of one shop described in the application situated at Tikamgarh @ Rs.500/- pm for non-residential purpose. As per further averments the respondent being retired government servant from the post of teacher is in bona-fide genuine need of such shop to start his business with his sons namely Arvind and Sanjay, for which they do not possess any other suitable accommodation of their own in the township of Tikamgarh. The disputed shop is more suitable and convenient for them. With respect of the alleged business the respondent had sufficient fund and means. In spite giving the notice dated 4.6.2003 to the applicant for vacating the shop, the same has not been complied with by vacating the premises. With these pleadings the aforesaid application for eviction was filed. In pendency of the case by amendment it is pleaded that his son Sanjay has 2 C.R.78/06.

vacated the tenanted shop in which he was running his business and other son Arvind has got assignment of a contract teacher in the State government for three years but still the alleged need is subsisting as the Arvind after three years on completing his aforesaid assignment on vacating the premises shall start the business.

3. In reply of the applicant, it is stated that disputed shop was taken long before on tenancy @ Rs.6/- pm, the same has been gradually increased up to Rs.400/- pm and not Rs.500/- pm. The respondent running his business in his own shop while his one son is doing the clothes business and another son is running the travelling business by operating the Tata Sumo vehicle. The available alternate vacant shops lying with the respondent have not been disclosed by way of pleadings in the application. Subsequently by amendment it is also pleaded that on account of heavy competition in the market said Sanjay after closing his cloth's shop of Tikamgarh started such business in the rural areas by roaming in different villages through vehicle while the further need of the other son who has got the job of contract teacher could not be deemed to be bona-fide need of the respondent. It is also stated that in pendency of the petition some vacant shop lying with the respondent is also let out by him to some person on tenancy. In spite it the respondent is still in possession of some vacant shops of his own, with these pleadings the alleged need of the respondent regarding disputed shop is denied and prayer for dismissal of the application is made.

4. In view of the pleadings after framing the issues, the evidence was recorded, on appreciation of the same by holding the tenancy @ Rs.400/- pm by allowing the respondent's application the rent Controlling Authority passed the impugned eviction order against the applicant. On which the applicant has come to this Court.

5. Shri Ravish Agrawal, Senior Advocate assisted by Shri Pranay Verma learned counsel of the applicant by referring the pleadings, evidence, available documents and the impugned order said the respondent is not covered under the definition of the specified landlord defined under Section 23-J (i) of the Act, hence his application under Section 23-A(b) could not be entertained by the Rent Controlling Authority. In continuation he said that according to the language of Section 23-J(i) of the Act only such retired 3 C.R.78/06.

government servant could be deemed to be specified landlord who actually while remaining in such service inducted the tenant in the premises. Under such definition a retired government servant who acquired the premises in succession in which the tenant was inducted by the predecessor in title is not covered. It was also said that it is apparent on record that the present applicant was not inducted by the respondent while remaining in government service, therefore he could not be deemed to be a specified landlord. In support of such contention he placed reliance on some reported decisions and said that the applicant being not covered under the category of specified landlord his application under Section 23-A(b) of the Act was entertained by the Rent Controlling Authority contrary to law and passed the impugned order contrary to the jurisdiction vested in it. Therefore, the same is not sustainable.

6. So far other merits of the case is concerned, he argued that the respondent inspite having possession of some vacant shops of his own adjoining to the disputed shop has not put forth the account of the same along with the explanation why the same are not suitable for his alleged need, while as per settled proposition of law in the lack of the pleading about such accommodation and it's unsuitability, the evidence if adduced by the party in that respect could not be read or taken into consideration as admissible evidence. In such premises the findings of impugned order holding the respondent is in bona-fide need of accommodation is not sustainable under the law. In continuation he said that the availability of sufficient alternate shops in possession of the respondent of his own in such town has been proved by the applicant by admissible evidence based on pleading and by placing his reliance on some reported decisions prayed for setting aside the impugned order of eviction with dismissal of the respondent's application by allowing this revision.

7. On the other hand responding the aforesaid arguments respondent's counsel Shri R. K Samaiya by referring the pleadings, recorded evidence and documents justified the impugned order of eviction saying that the same is based on sound appreciation of evidence and also is in conformity with law. So far the definition of specified landlord under Section 23-J(i) of the Act is concerned, he said that being retired government servant the respondent falls 4 C.R.78/06.

under such category of specified landlord and contrary to the language of such provision no different meaning or interpretation by categorizing the different category of the retired government servant could be given. In support of this contention he has referred the Full Bench decision of this Court in the matter of Kunju Lal Yadu Vs. Parashram Sharma reported in 2000(2) JLJ 105 and said there is no force in the arguments advanced by the applicant's counsel in this regard. By supporting the findings of the impugned order on the question of bona-fide genuine requirement he said that as per requirement of Section 23-A (b) of the Act all necessary facts are pleaded in paragraph 5 of his application and there was no need to plead or put forth the account of any available vacant shops lying with him and was also not necessary for him to plead how the same are not suitable and convenient for the alleged need. The same being matter of evidence has been proved by adducing the same. The Rent Controlling Authority on appreciation of evidence after holding such alternate accommodation is not suitable for the alleged need passed the impugned order. Therefore, mere in the absence of the pleadings with respect of such alternate available accommodation the impugned order could not be set aside specially when the case is contested by the parties with full understanding about availability of such other accommodation with the respondent. According to his submission, the case law cited on behalf of the applicant in this regard is not applicable in the present circumstance. In support of this contention he also placed his reliance on some reported decisions. It was also argued that under the revisional jurisdiction of this Court the re-appreciation of evidence in the manner as argued by the applicant's counsel is not permissible and prayed for dismissal of this petition.

8. Having heard the learned counsel, I have carefully examined the record of Rent Controlling Authority and also perused the impugned order.

9. The relationship of the applicant and respondent as tenant and landlord is not under dispute only the question that respondent is not falling under the category of specified landlord under Section 23-J (i) of the Act is raised on behalf of the applicant.

10. On behalf of the applicant tenability of the petition is challenged on the ground that respondent is not falling under the category of specified 5 C.R.78/06.

landlord defined under Section 23-J (i) of the Act. In order to consider such question as ready reference I would like to reproduce the concerning part of such Section 23-J(i) of the Act: The same is as under:

23-J. Definition of landlord for the purpose of Chapter III-A:

            (i)           a retired servant of any Government including a
                          retired member of Defence Services ; or
            (ii) . . . . . . . . . . . . .

            (iii) . . . . . . . . . . . . .
            (iv) . . . . . . . . . . . . .
            (v) . . . . . . . . . . . . .

11. It is apparent from the record that accommodation in dispute was acquired by the respondent in inheritance. As per available evidence long before the applicant was inducted in the disputed shop on behalf of the respondent by his maternal uncle and in such premises the respondent was the landlord of the premises who is initially covered by the definition of the landlord defined under Section 2(b) of the Act. It is also apparent on record that the applicant was remained as tenant in the premises when the respondent was in government service as teacher and only after his retirement from service he filed the impugned petition for eviction under Section 23-A(b) of the Act.

12. By referring the case law of the Apex Court in the matter of Bhagwat Dutt Rishi Vs. Ram Kumar reported in (1990) 1 SCC 324, it was argued by Shri Ravish Agrawal that according to law laid down in this case only that public servant could be deemed to be the specified landlord under Section 23-J(i) of the Act who actually leased out the disputed premises while he was a member of such service. According to him the applicant was not inducted in the premises by the respondent himself while remaining in the government service; as such he was inducted long back by the maternal uncle of the respondent when the respondent even did not join the service.

Therefore, the respondent being not falling under the category of such specified landlord his petition was not entertainable by the RCA.

13. I have carefully read the aforesaid cited case along with the earlier cases of the Apex Court referred in it. The case of Bhagwat Datt (Supra) and 6 C.R.78/06.

the referred case in it in the matter of D. N. Malhotra Vs. Kartar Singh (1988) 1 SCC 656 was decided on the background of Section 2(hh) and 13-A of the East Punjab Urban Rent Restriction Act (In short the Punjab Act) while the another referred case in the matter of Mrs. Winifred Ross Vs. Mrs. Ivy Fonseca (1984) 1 SCC 288 decided on the background of Section 13-A-1of Bombay Rents Hotel & Lodging House Rates Control Act 1947 (In short the Bombay Act.). In aforesaid both the enactment above mentioned para materia specific provision with respect of retired government officers to get eviction order against the tenant are enacted and the same were in existence. Taking into consideration the same aforesaid principle with respect of the definition of specified landlord was decided in the Bhagwat Datt's Case (Supra). The language of the above mentioned Sections of the Punjab Act and of the Bombay Act are para materia and taking into consideration the same in view of the proved fact that concerned premises was not leased out to the applicant by the landlord while remaining in the government service. It was held that such landlord is not falling under the category of specified landlord defined under the above mentioned provisions.

14. Long before Section 20-AA, the para materia of the aforesaid provision of Section 13-A of the Punjab Act and Section 13-A (1) of the Bombay Act was in existence under the M. P. Accommodation Control Act 1961. The same has been omitted by M. P. Accommodation Control Amended Act No.27 of 1983 w.e.f. 16.8.1983. Now after omitting Section 20AA of the Act from the statue the field of Section 23-J(i) of the Act is not governed by the law laid down by the Apex Court in the case of Bhagwat Datt (Supra) or the case laws referred in it. In such premises the cited case is not helping to the respondent in the case at hand.

15. The case law in the matter of Smt. Sulochna Vs. Rajendra Singh reported in 2008 (4) MPHT 136 (SC) cited by the applicant's counsel was decided taking into consideration the facts that some widow landlord (landlady) falling under the category of specified landlord under Section 23- J of the Act filed the eviction suit against the tenant in the Civil Court on the grounds available under Section 12-1 (a), (c) and (f) of the Act which was decreed by the trial Court only on the ground of bona-fide genuine requirement under Section 12-1 (f) of the Act, on challenging the validity of 7 C.R.78/06.

such decree on the ground of jurisdiction of the Civil Court in view of the provision of Section 23-J of the Act, in second appeal such decree was set aside by the High Court holding that she being landlord defined under Section 23-J of the Act could not have filed the suit in the Civil Court. But in appeal by the Apex Court it was held that such widow landlady is entitled to file the suit in the Civil Court as question of title of property as well as other grounds of eviction are also involved in the matter, and the decree was restored. In view of such distinguishable set of facts the cited case is neither applicable to the present case nor helping to the applicant.

16. Long before the aforesaid question regarding specified category of landlord defined under Section 23-J (i) is answered by the Full Bench of this Court in the matter of Kunju Lal lYadu Vs. Parashram Sharma reported in 2000(2) JLJ 105 in which it was held as under :

"13. In view of the aforesaid, it becomes bounden duty not to read the words into Act as the same is not absolutely necessary to do so. This view of ours gets support from the decision rendered in the case of the Director General, Telecommunication v. T. N. Peethambaram, AIR 1987 162 : (1987 Lab IC 31). Thus, in view of the categoricial, clear, unequivocal and unambiguous language used under Section 23-J of the Act, we are inclined to hold that the terms 'a retired Government servant' is only capable of one interpretation and every retired Government servant is a landlord within the meaning of the aforesaid provision. We do not intend to read it down to add qualifiers. In our considered opinion such reading down is not necessary. . . . . . . . . .

17. The aforesaid Full Bench decisions was given after taking into consideration the ratio of various Supreme Court decisions including the case of "Winifred Ross" (Supra) on which the case of "Bhagwat Datt Rishi"

(Supra) was decided. In the aforesaid Full Bench decision the note of repealed Section 20-AA of M. P. Accommodation Control Act the para materia provisions of existing Section 13-1 of aforesaid Punjab Act and Section 13-A-1 of Bombay Act was also taken and taking into consideration that such section has been repealed the aforesaid answer was given.

Therefore, at present the law settled by the Full Bench of this Court is governing the field in this regard. Therefore, it is held that respondent is 8 C.R.78/06.

covered under the category of specified landlord defined under Section 23- J(i) of the Act and he has rightly filed the eviction petition before Rent Controlling Authority under Section 23-A (b) of the Act. Thus the argument of the applicant's counsel in this regard is failed.

18. Coming to examine the question regarding sustainability of the findings of the impugned order with respect of the bona-fide genuine requirement of the disputed shop to the respondent is concerned. In paragraph 6 of the respondent's application filed under Section 23-A (b) of the Act it is stated that after vacating the disputed premises by the applicant and the adjoining premises by tenant Gyasilal the respondent and his both sons want to start their business for which they did not possess any other suitable accommodation of their own in the town of Tikamgarh. They had sufficient fund and means for such business. Accordingly they are in bona- fide genuine need of the alleged shop. It is noted that except these pleading, in order to show bona-fide genuine requirement the averments of the available vacant accommodation of their own in such town are not pleaded. On the other hand in the written statement of the applicant by denying the aforesaid alleged need of the respondent, it is stated that the respondent is running his own business in some other shop. Besides this some other vacant shops of his own are also lying with him. In such premises the alleged need of the respondent is neither bona-fide nor genuine. In pendency of the case by amendment in paragraph 7, it is stated that a son of the respondent namely Sanjay was running his shop situated near Chhotidevi in Mukhya Bazar but because lot of competition in the business he voluntarily has closed the aforesaid shop. The same was not got vacated by his landlord but the same was voluntarily vacated by Sanjay. So far other son is concerned, it is stated that he got employment as contract teacher in the state government. Therefore, such need is not in existence. It is also stated that in pendency of the case respondent also let out a vacant shop to some person on tenancy, inspite it the respondent is still having two vacant shops with him for the alleged need.

19. At trial Gyanchand Jain (A.W.1) the respondent landlord categorically accepted in his cross examination that he has six shops in which four are situated in side of gallery and out of them three shops are occupied 9 C.R.78/06.

by the tenant while one vacant shop is lying with him. The supporting witness his son Sanjay Jain (A.W.2) more and less deposed the same in different words. On the other hand the applicant Ramkishor Soni (N.A.W.4) in paragraph five of his affidavit filed under Order 18 Rule 4 of CPC and also in last paragraph of his cross examination categorically stated that some vacant shops are still lying with the respondent. His supporting witnesses Kamal Soni (N.A.W.1), Dinesh Soni (N.A.W.2) whom one shop was given on tenancy by the respondent in pendency of the case and Manoj Soni (N.A.W.3) also deposed that respondent had some vacant shop of his own in the same building. Besides this in the map annexed with the application under Section 23-A(b) of the Act some shops are shown to be vacant as the name of occupants of such shops are not mentioned either in such map or in the aforesaid application.

20. It is apparent from the aforesaid admission of the respondent that he is in possession of some vacant alternate non-residential accommodation of his own in the same building but the same has not been stated in the pleadings of the application. In order to show the bona-fide for the alleged need the landlord is duty bound to plead the available vacant accommodation with him and also the circumstance how the same are not suitable to him for the alleged need. It is settled proposition of law that no evidence can be led on a plea not raised in the pleadings and no amount of evidence can cure defect in the pleadings as laid down by the Apex Court in the matter of Ravinder Singh Vs. Janmeja Singh reported in (2000)8 SCC 191.

21. The law is well settled on this question that the landlord is obliged under the law to put forth the account of available alternate accommodation of his own and regarding unsuitability of the same for the alleged need in his pleadings. In the absence of such pleading in view of availability of such alternate accommodation with the landlord the alleged need of the landlord regarding disputed premises could not be held to be bona-fide or genuine for passing the decree of eviction against the tenant. Long back taking into consideration the provision of Section 12(1)(f) of the Act, which is para materia of Section 23-A (b) of the Act, the Apex Court in the matter of Hasmat Rai and other Vs. Raghunath Prasad reported in 1981 (3) SCC 103, has answered the aforesaid question in following verdict :

10 C.R.78/06.

"10. Section 12 starts with a non obstante clause thereby curtailing the right of the landlord to seek eviction of the tenant which he might have under any other law and the right of eviction is made subject to the overriding provision of Section 12. It is thus an enabling section. In order to avail of the benefit conferred by Section 12 to seek eviction of the tenant the landlord must satisfy the essential ingredients of the section. The landlord in this case seeks eviction of the tenant under S. 12 (1)(f). He must, therefore, establish (i) that he requires bona fide possession of a building let for non-residential purpose for continuing or starting his business; and (ii) that he has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. The burden to establish both the requirements of S. 12(l)(f) is squarely on the landlord. And before an allegation of fact to obtain the relief required is permitted to be proved, the law of pleadings require that such facts have to be alleged and must be put in issue. Ordinarily, therefore, when a landlord seeks eviction under S. 12 (1)(f) the Court after satisfying itself that there are proper pleadings must frame two issue namely (i) whether the plaintiff landlord proves that he bona fide requires possession of a building let to the tenant for non-residential purpose for continuing or starting his business, and (ii) whether he proves that he has no other reasonably suitable non-residential accommodation of his own in the city or town concerned. Without elaborating we must notice a well established proposition that any amount of proof offered without pleading is generally of no relevance."

22. On arising the occasion the aforesaid principle is also followed by this Court in the matter of Banarsi Devi Jain Vs. M.P. Transport Company and another reported in 2008 (2) MPLJ 155 in which it was held as under:

"12. Coming to the question of section 12 (1) (f) of the Act regarding bonafide, genuine requirement of disputed premises to the appellant for business and godown of her son is concerned, it is apparent from the plaint that on the date of filing the suit or subsequent to it, at any point of time, the available alternate accommodation, was neither pleaded nor any application in this regard was moved by the appellant. Although in the written statement of the respondents, the plea regarding availability of alternate accommodation is taken by the respondent and on vacating the premises by the tenant of adjoining premises under execution of the decree 11 C.R.78/06.

from the tenant New Delhi-MP Transport Company, the written statement was amended and such alternate accommodation is also pleaded. Inspite of such pleadings, the appellant did not take any steps to put forth the explanation and the accounts regarding unsustainability of such available accommodation by amending the suit. Although in support of the pleadings of alternate accommodation, the witnesses of the respondents did not state anything in their deposition but the witnesses of the appellant were cross - examined on this count. Jai Kumar Jain (PW-

1) son of the appellant admitted in para -6 of his deposition that her mother has got possession of the adjoining premises from the other tenant. In view of the settled preposition of the law that the plaintiff like appellant is bound to built -up her case with all probabilities to get the decree she could not be benefited on the weakness of the respondent/defendant, the aforesaid admission is sufficient to draw an inference that the appellant has got adjoining alternate accommodation during pendency of the suit and as per available evidence in the lack of any evidence regarding unsuitability of such accommodation for the alleged need, the suit could not be decreed at this stage on this ground by setting aside the findings of the trial Court in this regard. My aforesaid view is fully fortified by the dictum of the Apex Court announced in the matter of Hasmat Rai and another Vs. Ragunath Prasad, 1981 MPLJ (SC) 610=AIR 1981 SC 1711.

23. The principle laid down in the aforesaid case law in the available facts and circumstances of the instant case as discussed above, is directly applicable and in such premises the impugned order of eviction in view of availability of alternate vacant accommodation with the respondent, could not be sustained.

24. In the case of Duggii Veera Venkata Gopala Satyanarayana Vs. Sakala Veera Raghavaiah reported in AIR 1987 SC 406 cited by the respondent's counsel the eviction order was challenged at the first time in revision on the ground of absence of the averments of facts constituting all conditions of the eviction in the plaint. Such case was contested by the tenant without taking any objection in that regard and with all understanding of the fact even in the absence of any pleading in that regard. In such a situation by holding that at the stage of revision on first time no such 12 C.R.78/06.

objection of other side could be entertained and the order of eviction was not set aside by the Apex Court. While in the present case at the initial stage in the written statement the averments regarding available alternate vacant shops with the respondent was raised before the Rent Controlling Authority inspite that the respondent has not rebutted such averments with explanation of unsuitability of such accommodation for the alleged need by way of amendment in the petition. Accordingly, in the present matter such question is not being raised at the first time in revision by the applicant, hence the cited case being distinguishable on fact and stage of taking objection is not helping to the respondent. Besides this in view of the decision of the Apex Court presided over by Hon'ble three Judges in the case of Hasmat Rai (Supra) in order to prove the bona-fide need the pleading with respect of available alternate vacant accommodation is necessary and in the lack of it the eviction order could not be passed against the tenant.

25. So far the argument of the respondent's counsel that all necessary ingredients as per requirement of Section 23 A-1(b) of the Act are pleaded in paragraph 6 of the application and except that the pleadings with respect of availability of other accommodation and regarding their unsuitability was not required. The same could have been and has been proved by adducing the evidence, therefore the impugned order of eviction could not be set aside is concerned it is suffice to say that in view of the principle of Hasmat Rai's case (Supra) such argument is not sustainable, hence the same is failed.

26. So far the case law in the matter of Sujata Sarkar Vs. Anil Kumar Duttani reported in 2009 (2) MPLJ 156 cited by the respondent's counsel is concerned. The concerning landlords were in need of the entire building for the medical profession and in such case concerned tenant has neither set up the case in the written statement to the effect that the landlords/ plaintiffs has some suitable alternative accommodation in the city Jabalpur nor have the witnesses been examined to that effect. Therefore considering such peculier circumstance by allowing such appeal the eviction decree of trial Court was restored while in the present case not only the averments regarding availability of alternate accommodation with respondent is pleaded by the applicant in the written statement but the same has been proved by adducing 13 C.R.78/06.

the evidence. So in such distinguishable circumstances the cited case is not helping to the respondent.

27. Apart the case of "Sujata" (Supra) the case of Apex Court in the matter of Ramnarayan Arora Vs. Asharani and others reported in 1999(1) SCC141 referred in the "Sujata's" case (Supra) was also cited. Such case was decided taking in to consideration the requirement of residential accommodation by holding that if the pleadings are lacking or vague and if both parties have understood what was the case pleaded and put forth with reference to requirement of law and placed such material before the Court, neither party is prejudiced, the order of the High Court was affirmed while in the instant case neither the requisite pleadings in the light of "Hasmat Rai's"

case (Supra) was pleaded nor the material to show that how the available vacant shops in possession of the respondent are unsuitable to him for the alleged need is placed on record. In the lack of such pleadings and/or such material on record the applicant could not get the sufficient opportunity to rebut such circumstance either by cross-examining the respondent and his witnesses or by producing the sufficient evidence in that regard. In such premises if the impugned order of eviction is affirmed in this revision then certainly the right of applicant to defend the case on the question of availability of alternate accommodation with the respondent would be prejudiced. Hence, the above mentioned cited case is not helping to the respondent. Although with all respect this Court did not have any dispute regarding principle laid down in the aforesaid cited case but in the available set of facts of the present case the same is not helping to the respondent.

28. So far interference in the impugned order by invoking the revisional jurisdiction of this Court under Section 23-E of the Act is concerned, in view of the aforesaid long discussion the impugned order in the lack of proper appreciation of evidence adduced by the parties as discussed in former paragraph of this judgment and also contrary to existing legal position as held by the Apex Court in the matter of Hasmat Rai's case (Supra) till the extent of directing the eviction of the applicant from the disputed premises is apparently perverse, hence by invoking the revisional jurisdiction of this Court, the same could be set aside at this stage.

14 C.R.78/06.

29. Therefore, by allowing this revision, the impugned order till the extend of directing the eviction of the applicant from the disputed premises is set aside and till this extent the application of the respondent filed under Section 23-A(b) of the Act is hereby dismissed. In the facts and circumstances, there shall be no order as to the costs.

30. Revision is allowed as indicated above.

(U.C.Maheshwari) Judge K.

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