Rajesh vs Sau.Vimalaben
2009 Latest Caselaw 139 Bom

                                                   1

    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH AT NAGPUR.




                                                                                          
                                                                  
                        WRIT PETITION NO.1197 OF 1999.


    PETITIONER:         Rajesh s/o Jagannath Helge,




                                                                 
                        aged about 32 years, Occu: Business,
                        resident of Suvarna Nagar, Buldana, Distt.
                        Buldana.




                                                    
                                         VERSUS
                                   
    RESPONDENTS: 1. Sau.Vimalaben w/o Mangalkumar Punjabi,
                     aged 40 years, Occu: Household, resident
                     of "Karamsad", Subhash Pole, Tq. and 
                                  
                     Distt.Kheda (Gujrat State)

                          2. The Additional Collector, Buldana,
                              Distt.Buldana.  
           
        



    =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-=-=-=-=-=-=
    Mr.Rohit Deo, Advocate for the petitioner.
    Mr.A.C.Dharmadhikari, Advocate for the respondent.
    =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=





                              CORAM :     C.L.PANGARKAR,J.

                              DATED:      18th DECEMBER, 2009.

    ORAL JUDGMENT:

1. This writ petition is filed by the tenant feeling aggrieved by

the orders passed by the authorities under the Central Provinces

and Berar Letting of Premises and Rent Control Order, 1949. The

parties shall herein after be referred to as applicant and the non-

applicant. The petitioner is a non-applicant.

2. The facts giving rise to the writ petition are as follows -

The applicant is the owner of the house described in the

application. The non-applicant took the said premises on lease and

agreed to pay Rs.1150/- per month as rent. It was agreed that the

rent would be paid before 5th of each month. The tenant had also

agreed to vacate the premises as and when required by the

landlord. The non-applicant/tenant executed a rent note in favour

of the applicant. The tenancy was for a period of eleven months.

The non-applicant/tenant had, therefore, agreed to vacate the

premises by 30/11/1995. The non-applicant did not vacate it on

the ground that he is in search of new premises and would vacate it

after six months as soon as he gets possession. Even thereafter he

did not vacate. The non-applicant has not paid the rent regularly

and therefore, is habitual defaulter. The applicant contends that

the applicant needs the suit premises for her bona fide use and

occupation since her son intends to start business there. It is also

her case that she wants to erect a new building on the said

premises to enable her son to run the business and for that reason

too she requires the suit premises.

3. The application was opposed by the tenant/non-applicant.

He admitted the description of the property. He also admitted that

he is a tenant and is paying Rs.1150/- per month. He denies that

he is a habitual defaulter. He also denies that the applicant needs

the premises for her son and that her need is bona fide. It is his

case that the rent was paid from time to time by different modes as

per practice prevailing between the parties. The non-applicant

submits that he was in search of alternate accommodation but

could not get the same and therefore, could not vacate the suit

premises.

4. The parties led their evidence before the court. The learned

Rent Controller granted permission under clauses 13(3)(ii)(vi) and

(vii) of the Act to the applicant. The non-applicant preferred an

appeal before the Additional Collector. The Additional Collector

confirmed the finding of the Rent Controller. Hence, this writ

petition.

5. I have heard the learned counsel for the petitioner as well as

the respondent.

6. The learned counsel for the respondent raised a contention

that this court cannot reappreciate the evidence and disturb the

concurrent findings of fact in a writ petition. Ordinarily, High

Court cannot and will not do that but in the instant case reasons

given by the Rent Controller and the Additional Collector for

granting permission are nothing short of perversity and show total

non-application of mind. It would be appropriate to demonstrate

that, by quoting the observations of the Rent Controller, in

paragraph nos.4 and 5.

"In fact this desire of the applicant to use the premises as she likes have no challenge in view of

the written agreement between the parties (As such as the period of agreement was over, the non- applicant should have vacated the premises

whatsoever may be his difficulties or inabilities. It is not necessary to prove bona fide need of occupation of the premises, in the case where there is written agreement between the parties to vacate the premises after specified period. However, in this case the applicant have proved

her case under clause 13(vi) of the Rent Control

Order.

"It is clear from the bank drafts that the tenant had formed a habit of paying the rent irregularly.

Therefore, it is held that the tenant is a habitual defaulter".

7. The observations made by the Additional Collector in his

order also need to be quoted.

"Similarly, as per the draft, the appellant has lastly paid the rent on 18/4/1996 and it is seen that

thereafter no rent is paid. The appellant, in his

cross examination, has admitted that he has not paid the rent since the initiation of the proceeding and also no bank draft was sent. In fact, it is the

responsibility of the tenant (appellant) to pay rent to the landlord regularly. If the landlord was refusing to accept the rent, then it was necessary

for the tenant to send the rent by money order or as earlier by Bank Draft. From th is it is clear that the appellant has not regularly paid the rent for the suit premises.

8. These observations, to my mind, are enough to reappreciate

the facts and the evidence and the Law. These are not the mere

errors on the part of the authorities below which need to be

corrected but what they have done is one without understanding

the law and its requirement.

9. The authorities have granted permission under sub-clauses

(ii) (vi) and (vii) of Clause 13(3) of he Central Provinces and Berar

Letting of Premises and Rent Control Order,1949. Sub clause (ii)

speaks of habitual default. Proceedings before the Rent Controller

are Judicial proceedings. The rules of pleadings, therefore,

certainly apply to these proceedings. No amount of evidence in

fact becomes admissible unless there is a pleading to that effect. It

is in this background that one must look into the pleadings in the

application. I, therefore, turn to the pleadings first. In paragraph

6 of the application following averements are made by the

applicant and I quote them here.

6. It was agreed by the non-applicant that, he would be regular in making the payment and would pay the rent on or before 5th of every month, but the non-applicant did not keep his words. He was regularly irregular in making the payment. Thus, the non-applicant is a habitual defaulter and violated

the terms of tenancy. On this count the applicant is

entitled to get permission to issue quit notice.

10. Now, if these pleadings are seen, they do not go to make out

the case under sub-clause (ii) of clause 13. The applicant does not

plead as to since what date non-applicant/tenant is in arrears of

rent and how the rent has been paid. There is no schedule of

payment of rent attached to the application so as to explain the

manner of payment of rent. What is pleaded is that rent was

agreed to be paid every month before 5th and that is not so paid.

In order to show that it was not so paid before 5th, the landlord

should have produced the copies of the rent receipts or at least

schedule. In the absence of such schedule, it was not possible to

hold that the tenant was regularly irregular in payment of rent, as

alleged. Landlady herself has placed on record the copies of

demand drafts. They show that the rent was paid by demand

drafts and she accepted rent up to 18/4/1996 without protest. The

rent was, therefore, never collected by Mukthyar or else tenant

would not have been required to send it by demand draft. There is

nothing on record to show that there was any protest on the part

of the landlord when the rent was sent by demand drafts and

somewhat late. The applicant/landlord seems to have acquiesced

to the manner of payment of rent. In 1993 Mh.L.J. 567

(Mangalabhai and others .vs.. Dr.Radheshyam Parichandra

Agarwal), the Supreme Court observes as under -

7. As already mentioned above all the grounds for eviction taken by the respondent/landlord were decided against him by the Rent Controller as well as

the Resident Deputy Collector. In the writ petition

before the learned Single Judge the arguments were restricted to clause 13(3)(ii) and (vi) only. It may be

noted that the provision as regards default in the payment of rent is contained in clause 13(3)(ii) of the Rent Control Order which provides that in order

to seek permission to serve with notice of ejectment

on this ground it must be proved by the landlord that the tenant was "habitually in arrears with the rent".

According to the respondent/landlord himself the rent from 1/1/1972 till the filing of the application under clause 13 of the Rent Control Order on

24/9/1981 the rent was accepted without any demur even when the same was paid late by several months. A perusal of the statement of rents paid and received by the respondent clearly shows that at several occasions the rent was even paid in advance and at least after 1978 the payment of rent was never late for more than two months on any

occasion. The contention of the appellants is that it

was neither their intention nor to call it a habit of remaining in arrears of rent. The Legislature has

clearly used the word "habitually" in respect of delaying the payment of the arrears of rent and not

to cover a case of a tenant who bona fide paid the rent on demand from the side of the landlord or as and when his munim came to collect the rent as was

done in the present case. The tenants in the present

case were even paying the rent in advance and such tenants cannot be considered as habitually in arrears

with the rent as contemplated under clause 13(3)(ii) of the Rent Control Order. If such is the practice and course of conduct adopted for receipt of rent for a

number of years, the tenant cannot be taken by

surprise by at once resorting to an application under clause 13(3)(ii) that the tenants/appellants were habitual defaulters. In the present case the

landlord/respondent had served a notice on 21/8/1981 and that he wanted the rent to be paid every month before the due date and filed the

present petition on 24/9/1981. The tenants also sent a reply to such notice on 29/8/1981 and refuted the allegation of any default in the payment of rent and took the plea that the landlord's minim used to collect the rent and later on passed the receipts. There was no alternate arrangement for payment of

rent. There was an established practice to pay rent

to Raghuji Munim who used to come to collect the same as per his convenience. Thus, it is proved

beyond any manner of doubt that the parties had adopted the practice of payment of rent in lump sum

and not month by month and which continued from 1/1/1972 to the date of filing the present application under clause 13 of the Rent Control Order.

11.

In the case at hand, demand draft referred to above shows the

practice of sending the rent by demand draft and at times for a

period covering two months. These aspects have not at all been

considered by the courts below. They have not considered the fact

that there is no pleadings with regard to the period for which the

tenant was in arrears of rent. In the absence of such pleadings, no

amount of evidence could have been in fact accepted. Even if the

evidence is accepted, the evidence does not go to show that the

tenant is habitual defaulter.

12. Before turning to the ground of bona fide requirement, I shall

first deal with the admissibility of the evidence of PW 1 Gulshan -

the holder of the Power of Attorney. The learned counsel for the

petitioner submits that the evidence of PW 1, who is a power of

attorney, should not have been accepted since he does not speak on

his own knowledge. Shri Dharmadhikari, on the other hand,

submits that the evidence of the Power of Attorney can also be

accepted and there was no need to examine the applicant at all.

The petitioner's counsel Shri Deo, relies on the decision of the

Supreme Court in 2005(1) Mh.L.J. 1170 (Janki Vashdeo Bhojweani

and anr. ..vs.. Indusind Bank Ltd. and ors.). The Supreme Court

observes as under -

17. On the question of power of attorney, the High

Courts have divergent views. In the case of Shambhu Dutt Shastri vs. State of Rajasthan, 1986

(2) WLL 713 it was held that a general power of

'attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his

own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different

act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.

18. The aforesaid judgment was quoted with the approval in the case of Ram Prasad vs. Hari Narain

and Ors., AIR 1998 Raj 185.l It was held that the

word "acts" used in Rule 2 of Order III of the Civil procedure Code does not include the act of power

of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can

appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a

witness on behalf of the party in the capacity of

that party. If the plaintiff is unable to appear in the Court, a commission for recording his evidence

may be issued under the relevant provisions of the Civil Procedure Code.

21. We hold that the view taken by the Rajasthan

High Court in the case of Shambhu Dutt Shastri (supra) followed and reiterated in th case of Ram Prasad (supra) is the correct view. The view taken

in the case of Floriano Armando Luis (supra) cannot be said to have laid down a correct law and is accordingly overruled.

13. It is, therefore, apparent that a power of attorney cannot be

allowed to appear as a witness of plaintiff in the capacity of the

plaintiff. This court while discussing above judgment observed thus

in 2006(2) Mh.L.lJ.511 (Shankar Patiram Bhure ..vs..

Smt.Seetadevi Vishnukumar Modi).

9. The learned counsel for the appellant further

contended that the courts below erred in passing a decree of appellant-defendant's ejectment without considering the fact that there was no evidence

tendered by the respondent-plaintiff. He submitted that the evidence was tendered by the father-in-law of the plaintiff as holder of her power of attorney.

Relying on a decision of the Supreme Court in the

case of Janki Vashdeo Bhojwani and anr. ..vs.. Indusind Bank Ltd. and others, reported in 2005(1)

Mh.L.J.(SC) 1170 = (2005) SCC 217, the learned counsel for the appellant argued that a holder of power of attorney was not entitled to depose in place

of the plaintiff. The Supreme Court has considered

the effect of execution of a power of attorney and the scope of activities which the power of attorney could

take up. The last sentence in para 13 of the judgment, the Court is, however, significant and would clinch the issue. The Court observed,

".....Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."

14. Shri Dharmadhikari, learned counsel for the respondent,

relies on this decision. In the instant case, the power of attorney

appears as if he is an applicant himself, which he cannot do. It

seems from his deposition that he does not have personal

knowledge about the contract between the applicant and the non-

applicant and he does not have any other knowledge.

PW 1 Gulshan admits that the first agreement took place between

the husband of the applicant and the non-applicant. He admits

that he does not know how much area was given on lease to the

tenant. He admits that the agreement did not take place in his

presence. He further admits that he does not know since when

other house of the applicant is in occupation of the tenant. He

goes on to admit that he does not know as to at which place at

Buldhana the husband of the applicant was running grossery shop.

Obviously, witness has no personal knowledge of anything about

the contract and even about the property and the business of the

husband of the applicant. To my mind, with these admissions the

evidence of PW 1 Gulshan could not have been accepted as he does

not have personal knowledge.

15. I now turn to the question of bona fide requirement. Here, it

must be observed that the pleading is extremely deficient and I

once again proceed to quote the pleadings in paragraph no.9 with

regard to the bona fide requirement.

9. The applicant needs the tenanted premises for

her bona fide use and occupation. Her son now intends to start his business at Buldana. The applicant wants to construct a pucca building over

the plot which is not occupation of the non-applicant.

She had applied to the Municipal Council for permission to construct the building and also

submitted the proposed plan. The Municipal Council has approved the plan and granted permission to the applicant to construct the building. That the building

can not be constructed unless the tenant vacates the

tenanted premises. The applicant has no other premises, except the tenanted premises to provide accommodation to her son to run the business. Thus,

the premises in question needs for the bona fide occupation of the applicant.

16. If these pleadings are seen, it is clear that there is a pleading

of only three sentences. The requirement is said to be of son and

with a view to set up business. There is nothing clear as to what is

the age of the son of the applicant, what kind of business is wants

to run, how much is the requirement and why this particular

premises are suitable for running that business. A bald statement

in the application that applicant bona fidely requires the premises

would not be enough. If there are no sufficient pleadings, the non-

applicant would never be able to meet the case. In this particular

case, such pleadings were absolutely necessary because of the fact

that the applicant and her son both have not been residing in

Buldhana for the past more than twenty years and they are residing

in Gujarat - a place very far away. It was, therefore, necessary

what the son is doing and what business he wants to start and why

he wants to come all the way from Gujarat and starts the business

at Buldhana, particularly when the husband of the applicant had

left the business at Buldhana and had gone back to Gujarat. There

is no doubt that the landlord's need should normally be taken as

genuine. Following decisions were cited by Shri Dharmadhikari.

1. 2005(3) Mh.L.J. 1109 (M.C.H. & M.C.

Industries ..vs.. Kamalabai)

2. 2009(2) Mh.L.J. 225 (Sharadabai Anandrao Durgule ..vs.. Ramchandra Mankul Pol.)

3. 2005(3) Mh.L.J.197 (Goverdhandas Mulchand Agrawal and ors. ..vs.. Bherulal Uderam Bagade and anr.)

4. (1998)3 SCC 341 (Rena Drego (Mrs) ..vs.. Lalchand Soni and ors.)

5. 2002(4) Mh.L.J. 473 (Balwant P. Doshi ..vs..

Shantaben Dhirajlal Shah and anr.)

6. (1996) 5 SCC 344 (Meenal Eknath Kshirsagar (Mrs.) ..vs.. Traders and Agencies and anr.)

All these decisions say that normally the desire of the landlord

should be taken as genuine. However, none of the decisions says

that the court must accept the case of the landlord even without

pleadilngs and evidence. PW 1 Gulshan states about the bona fide

in the following words.

"Applicant has one son. He is 20 years old. He has

no avocation for the present. He intends to start

business."

17. These are the only sentences in examination-in-chief. To my

mind, they are not enough to conclude that the landlord needs the

premises bona fide. This court in a decision reported in 1979

Mh.L.J.545 (Sukhadeo Krishnarao Ghatode ..vs.. Laxmibai

Dattatraya Mohoril) observes as follows -

14. It is not enough that this can be established by a landlord by adducing evidence. A tenant has to meet such a case, and can only do so provided he is

posted in advance as to what he has to meet.

Where, therefore, an application by a landlord is devoid of such particulars and is bald, the tenant is

necessarily prejudiced. I may in this connection refer to a decision reported in Ganpat v.

Rameshwar. In that case also the landlord had applied for permission on the ground that he required the premises bona fide for his personal

occupation. He did not, however, give any details

in his application and whether he needed it for the purpose of residence or for the purpose of "his

business or for storing". It was observed :

" Unless these details were given the tenant could not be expected to properly meet the case of

the landlord. It is the landlord who has to make

out a case for his need for bona fide occupation. For this purpose he must put before the court all the necessary details which are required for

granting him relief. On such vague allegation as made in the present application, the petitioner cannot expect to get relief on the ground of his

bona fide occupation."

In that case, the petitioner landlord had besides other houses which he owned. Though that may not be in the present case the position, the present application is also bereft of all details. The number

of members in the family, the circumstance which

was sought to be put forward during evidence that the locality wherein he says in Budhwara is neither

convenient nor good has also not been sated, as compared to the locality in which the premises in

suit are situate. The landlord did not say how many members were in his family and in what manner it would be convenient to him to have the

premises in question. He did not make out the

needs of individual members of his family, nor did he point out the area which was actually in his

occupation in the rented premises and the area which would become available to him after the tenant was evicted. In the absence of this

comparative data and material being available and

being put forward in the application, th tenant in meeting the case of the landlord would be gravely prejudiced. It would permit a landlord to make out

a case at the time of trial in any manner he liked, and the tenant would have no opportunity and occasion to meet such a case which is sprung in his

face for the first time.

15. I have already pointed out that where a landlord requires premises bona fide, an element of necessity or compulsion must always be present. In what manner that compulsion or need was felt by

the landlord is nowhere to be found in the present

application. All that is said is that he wanted to have accommodation in his own house and for

convenience. In what manner that convenience will be secured, the edge of necessity, is also left to

guess. It would appear from the wording of the application that the landlord not only intends to keep the premises wherein he is a tenant, but

wants additional premises, for, he says " he wanted

more accommodation" and not that he wanted "the accommodation in suit". It seems to me that the

main object of the landlord is not to acquire accommodation in the suit house, but to have additional accommodation. If there did not exist

any need for additional accommodation, then it

would follow that the landlord's need was not bona fide. That aspect of the matter and in what way the landlord needed additional accommodation has

nowhere been clarified during the evidence.

Therefore, there has to be pleadings and evidence both. In the

decision reported in 2005(3) Mh.L.J. 1109 (Motor Cycle House and

Metro Cottage Industries ..vs.. Kamalabai Dattatraya Kale and ors.),

this court observes as under relying on Supreme Court decision.

7. The learned counsel appearing for the

landlord- respondent has relied on (2001) SCC

679, Ragavendra Kumar vs. Firm Prem Machinery and Co. in support of his submission and also in

support of the reasoning given by the Court below. Whereby, after considering the bona fide need of

the landlord-respondent, the Courts below has granted the decree of possession. The principles, as laid down need no discussion, but it can be

crystallized as follows : (a) The landlord is the best

Judge of his own requirement for residential or business purposes and has complete freedom in

the matter. (b) Unless proved otherwise, the reasonable and bona fide need of the landlord, if supported by material evidence on the record, has

to be respected. (c) Even if some premises owned

by the said landlord is available, but occupied by other tenants, in such circumstances also, ownership of the landlord, specially when it is

proved that the premises in question is needed at the relevant time of filing of the petition. (d) It is true that the bona fide need or genuine need of

the landlord must not be a farce and/or a just cause to evict the tenant for other ulterior purpose. In the present case, as noted above, there is nothing on the record to suggest that the need of the landlord is not reasonable or bona fide or it is for any ulterior motive.

The need, therefore, must not be a farce. Here, there are no

pleadings and there is no evidence. The landlady does not enter

into witness box. Her grown-up son does not enter the witness box

nor her husband enters the witness box. The son at least should

entered the witness box since his need has been set up. In the

instant case, the evidence of a person who has no personal

knowledge as to what business the son of the applicant intends to

start would be of no help at all. The courts below have ignored all

these circumstances and facts. There is no evidence whatsoever to

hold that the requirement of the landlord is genuine.

18. We now come to the last ground i.e. alterations and essential

repairs to the premises. The case of the applicant is one of

reconstruction of the premises. It is pleaded by the applicant that

she wants to erect a new building and she cannot do that without

tenant vacating the premises. She pleads that she has got the plan

approved from the Municipal Authorities for construction of a new

building. Now, this is the only plea. Shri Deo, learned counsel

appearing for the petitioner, submits that the landlord is supposed

to give all details and time-schedule for completion of the work and

an assurance that he would make similar premises available to the

tenant. He submits that the application does not contain such

details at all and for this simple reason the permission should have

been rejected. This court has observed in a decision reported in

1980 Mh.L.J.347 (Vasant Balwant Mohite and ors. ..vs.. Shakun

B.Dhote and ors) as follows -

16. Many more such examples can be quoted in

which such type of provision requiring the landlord to start and complete the construction within a

particular period which can be extended only by the Court, exists and the reasons for incorporating such a provision are not far to seek. If no such obligation

is cast on the landlord, he would be able to oust the

tenant on the ground and will not be legally obliged to carry out the repairs or alterations within reasonable period and will have to right of

postponing it indefinitely or unreasonably. Thereby the rights of the reinstatement on the property will be completely negatived or at least reduced to force.

The right of a landlord to get possession for repairs and alteration and so also the right of a tenant to get back the property after completion go hand in hand even in terms of the present order due to these twin provisions of clauses 13(3)(vii) and 13(7). Ousting of a tenant of this ground is only temporary phase

and it cannot be allowed to be made permanent.

Thus the commencement of the construction or repairs and its completion within a reasonable

period is a sine qua non to such provisions and to their combined effect. It will thus be reasonable to

expect that incoming legislation will make the necessary and suitable changes to check the possible misuse of such provisions by incorporating in it a

substantial necessary provision about time schedule.

17. Apart from this, let us examine the provision

as it is, and see how it works. The two words "desire" and "essential" used in this provision need a pointed attention. Desire to some extent is

synonymous with the intention and the intention has

to be real and not merely a pretext. Mere intention without element of essentiality may or may not have

a place in the provision. The debatable question as to whether the essentiality has relation only with the condition of building and nothing else does not fall for consideration in the present case. But, one thing

seems to be definite that existence of both, viz. real desire as well as the essentiality are conditions precedent for moving rent control machinery under this clause the edifice of which can stand only on these two pillars.

18. One cannot lose sight of the fact that this is

legislation impregnant with the object of giving protection to the tenants who are by and large

considered to be less fortunate class of society. Dealing with the objects of the Rent Control

Legislations in the case of Neta Ram v. Jiwan Lal (cited supra), the Supreme Court has observed as under -

: It is well-know that Rent Registrations Acts

were passed in view of the shortage of houses and the high rents which were being demanded by the

landlords. The very purpose of the Rent Restriction Acts would be defeated if the landlords were to come forward and to get tenants turned out, on the

bare plea that they want to reconstruct the houses,

without first establishing that the plea is bona fide with regard to all the circumstances."

Thus, it will be seen that by merely stating in the application that house is to be repaired or altered and that those alterations and/or repairs are

essential is not enough. The bona fides, the honest desire of effecting them must also be shown to be in existence. This necessitates the demonstration of all the necessary aspects which go with bona fides. If not the exhaustive an illustrative list of the circumstances which can establish bona fide or real

desire can be given. It may include the condition of

the house, the nature of the proposed work, the financial capacity to undertake and finish that and

so also the period within which the proposed work is intended to be commenced and completed. It is

unthinkable that the landlord will have no probable time schedule of the work in his mind at the time when application before the Rent Controller is filed.

If these are the requirements without which the

intention of the landholder cannot be held to be genuine, it is necessary for him to establish all these

relevant factos., "After all intention or desire is a mental condition and its abysses has to be plumbed only on the basis of circumstances. The absence of

one or more, may be a factor which has to be taken

into consideration in the matter though whole approach has to be taken into consideration in the matter though whole approach has to depend upon

all circumstances bundled together. Thus, the time schedule is as important as any other aspect of this connection and its absence will go a long way in

presuming absence of real desire. In the case of Metalware & Co. v. Banailal, dealing with this aspect of the question, the Supreme Court's observations run as under :

" If the Rent Controller has to be satisfied about the bona fide requirement of the landlord which

must mean genuineness of his claim in that behalf

the Rent Controller will have to take into account all the surrounding circumstances including not merely

the factors of the landlord being possessed of sufficient means or funds to undertake the project

and steps taken by him in that regard but also the existing condition of the building, its age and situation and possibility or otherwise of its being put

to a more profitable use after reconstruction."

It is no doubt true that the question of time factor

was not in issue before the Supreme Court and therefore, was not decided. The ratio, however, undoubtedly is that of all requirements of bona fides

must be established.

19. In the present days short of accommodation, the landlord cannot be allowed to evict the tenant

on the ground that repairs or alterations are required to be premises without exhibiting and providing a genuine desire to undertake the work

and finish it within a reasonable period. Thus, it seems to me that pleading as well as proof of the time schedule is one of the necessary ingredients of maintainability of application under this clause. All these factors must enter verdict of the Controller and the genuineness or otherwise of the desire must be

proved. These matters, however, are with special

knowledge of the landlord. This being the position, it is also necessary that all these factors are not

allowed to be brought for the first time in evidence, but should be specified in reasonable details in the

pleading so that opponent is not taken by surprise and is not thrown to winds at the eleventh hour. Passing reference may be made to section 106 of

Evidence Act and the principles underlying that

provision, in this connection.

This decision has been followed by this court in a writ petition No.

2646 of 1997, decided on 12/11/2009. If the ratio of this decision

is to be followed, it is clear that for want of pleadings and the

evidence in that regard, the desire of the landlord to reconstruct

the house cannot be said to be bona fide. In the circumstances, I

find that the courts below fell in error in granting permission . The

orders passed by the courts below, therefore, need to be set aside.

The writ petition is allowed. The application filed by the applicant

before the Rent Controller stands rejected. No order as to costs.

JUDGE.

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