Madhya Pradesh High Court

Smt.Chandravati Devi vs Smt. Siya Bai Pathak on 8 October, 2021

Author: Rajendra Kumar (Verma)

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                                                                                                C.R.No.262/2020

                                          THE HIGH COURT OF MADHYA PRADESH, JABALPUR


                                    Civil Revision No.            : 262 of 2020
                                    Parties Name                  : Smt Chandravati Devi vs. Smt. Siya Bai
                                                                    Pathak and others


                                    Bench Constituted             : Hon'ble Shri Justice Rajendra Kumar
                                                                    (Verma)
                                    Whether approved for          : Yes/No
                                    reporting
                                    Name of counsel for parties   : Shri Jaideep Sirpurkar, Advocate for the
                                                                    applicant.
                                                                    Shri Amitabh Gupta, Advocate for the
                                                                    respondent No.2.

Law Laid Down Significant Paragraphs

Jabalpur, Order dated 08.10.2021.

The applicant has filed this Civil Revision under Section 23-E

of the M.P. Accommodation Control Act, 1961 (hereinafter referred

to as 'the Act') being aggrieved by the order dated 05.11.2020

passed by Rent Controlling Authority-cum-Sub-Divisional Officer,

Sub-Division Adhartal, Jabalpur in Revenue Case No.09/A-90/2020-

2. Brief facts necessary for disposal of the present Revision are

that the applicant filed an application under Section 38 of the Act

against the respondent before the Rent Controlling Authority, Signature Not Verified SAN

Jabalpur and during pendancy of the aforesaid application, the Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2021.10.08 18:04:33 IST

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C.R.No.262/2020

respondent No.1 (owner) filed a separate application under Section

23 of the Act stating that the applicant has been rented the

premises at Rs.1500/- and tenancy starts on each first day of the

calendar and ends on the last day of each month. From January,

2019, the respondent No.2 enhanced the rent to the tune of

Rs.500/- per month and thereafter from the month of January, 2019

the applicant used to pay rent @ Rs.2000/- per month. The

applicant (tenant) along with her daughter and son resided there

peacefully. The respondent tried to forcefully vacate the premises

and, therefore, the applicant filed a Civil Suit before the competent

Court alongwith an application for temporary injunction, which was

rejected. In an appeal M.C.A.No.34/2020, learned 3 rd Additional

District Judge, Jabalpur has granted temporary injunction in favour

of the applicant vide order dated 24.02.2020.

3. On an application under Section 23-A of the Act filed by the

respondent, the applicant was directed by the Rent Controlling

Authority, Gorakhpur to vacate the tenanted premises, but in

compliance of the aforesaid order, the Rent Controlling Authority

Gorakhpur stated that the aforesaid place comes and concerned

with Adhartal area. Thereafter, the respondent No.1 again filed an

application before the Rent Controlling Authority Adhartal on the

ground that the respondent No.1 is widow lady aged 65 years and is

the owner of the tenanted house, in which, the applicant, her

daughter and son are illegally and forcefully trying to possess and

by the impugned order, this application has been allowed. Hence, Signature Not Verified SAN

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2021.10.08 18:04:33 IST

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this Civil Revision.

4. Learned counsel for the applicant submits that powers under

Section 23-E of the Act are wider than that of under Section 115 of

the Code of Civil Procedure. The Court can touch the findings if

shown to be perverse. In support of the aforesaid submissions, he

has relied upon a judgment of this Court in the case of Kailash

Chandra & brother and others vs. Dr. Kamla, 1998(1) MPLJ

5. Learned counsel for the applicant has further submitted that

the Rent Controlling Authority has passed the impugned order

without following the statutory provisions of Section 23-A(1) of the

Act. It is also submitted that the respondent has not specifically

mentioned in the application filed before the Rent Controlling

Authority that the respondent comes under the definition of

'landlord'. It is also submitted that the impugned order is erroneous

on law it ought to have seen that this aspect that the applicant is

continuously paying monthly rent of the possessed accommodation.

6. Learned counsel for the applicant has further submitted that

the respondent has suitable house in the city of Jabalpur and as per

the provisions of Section 23(A) of the Act, the respondent is not

having bona fide need and, therefore, the finding in this regard by

the Rent Controlling Authority is unjust and improper. It is also

submitted by learned counsel for the applicant that there is no

pleading regarding the alternative suitable accommodation. It is

also submitted that it is necessary for the landlord to plead and Signature Not Verified SAN

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2021.10.08 18:04:33 IST

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prove his bona fide requirement. In the present case, neither there

is any proof with regard to bona fide requirement nor the Rent

Controlling Authority has discussed anything about it. Therefore,

the impugned order has been passed mechanically without

application of mind. In support of the aforesaid submissions, he has

relied upon judgments of this Court in the cases of Mahendra

Kumar Jain vs. Dharamchand Jain, 1986 JLJ 145 and Lalta

Prasad vs. Ramcharan, 1986 JLJ 713.

7. It is also submitted by learned counsel for the applicant that

landlord is required to plead and prove that he has no suitable

alternative accommodation. Only bald statement that the

respondent has no alternative accommodation as contained in para

2 of the application has been made and the Rent Controlling

Authority is duty bound to consider this aspect and render a finding

on the same. Without there being any finding, the requirement of

Section 23-A of the Act is not fulfilled and order of eviction cannot

be passed. In support of the aforesaid, he has relied upon a

judgment in the case of Ramkishore vs. Gyanchandra Jain,

2010(3) MPLJ 359.

8. It is also submitted that a civil suit is pending and an order of

injunction (Annexure A/2) has been passed in favour of the

applicant. The order impugned is in teeth of and in conflict with the

order of injunction passed by the Civil Court, which enjoys superior

jurisdiction.

9. Learned counsel for the respondent No.2 has submitted that in Signature Not Verified SAN

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2021.10.08 18:04:33 IST

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the matter under Section 23-A(a) of the Act, it is not required for

the landlord to plead in his application his ownership of the

accommodation or to establish the same by adducing evidence

aliunde. It is admitted by the applicant that she is a tenant.

Learned counsel for the respondent in this regard has relied on a

judgment of the apex Court in the case of Anar Devi (Smt) vs.

Nathu Ram, (1994) 4 SCC 250.

10. It is also submitted by learned counsel for the respondent that

the provisions of Section 23(D) (3) of the Act are very clear which

specifically contain that in respect of an application by a landlord it

shall be presumed unless the contrary is proved that the

requirement by the landlord with reference to clause (a) and clause

(b), as the case may be, of section 23-A of the Act is bona fide and

the tenant must rebut the presumption. In support of the aforesaid

submissions, he has relied upon judgments in the cases of Jagdish

Chandra vs. Smt. Kulveer Kaur reported in 2001(2) MPLJ

361, Tilakraj Sharma vs. Shyamabai Tiwari, 1997(1) MPLJ 72

and Nirmala Narendra Kumar Chhabra vs. Laxminarayan

Raghunandan Tiwari, 2002(1) MPLJ 562.

11. Heard learned counsel for the parties at length and perused

the record.

12. Section 23-A of the Act which provides eviction of a tenant on

the ground of bona fide requirement reads as under:

"23A. Special provision for eviction of tenant on Signature Not Verified SAN ground of bonafide requirement- Notwithstanding

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2021.10.08 18:04:33 IST

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anything contained in any other law for the time being in force or contract to the contrary, a landlord may submit an application, signed and verified in a manner provided in Rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908) as if it were a plaint to the Rent Controlling Authority on one or more of the following grounds for an order directing the tenant to put the landlord in possession of the accommodation, namely :-

(a) that the accommodation let for residential purposes is required"bonafide" by the landlord for occupation as residence for himself or for any member of his family, or for any person for whose benefit, the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned."

13. Section 23-D of the Act, provides procedure to be followed by

the Rent Controlling Authority, which is relevant and quoted below:-

"23-D. Procedure to be followed by Rent Controlling Authority or grant of leave to tenant to contest.-- (1) Where leave is granted to the tenant to contest the application, the Rent Controlling Authority shall commence the hearing of the application as early as practicable and decided the same, as far as may be within six months of the order of granting of leave to the tenant to contest-application. (2) The Rent Controlling Authority shall, while holding an inquiry in a proceeding to which this Chapter applies, follow as far as practicable, the practice and procedure of a Court of Small Causes including the recording of evidence under the Provincial Small Cause Courts Act, 1887 (IX of 1887). The Rent Controlling Authority shall as far as possible, proceeded with the hearing of the application from day to day.

(3) In respect of an application by a landlord, who is a retired servant of any Government including a retired member of Defence Services or a retired servant of a company owned or Signature Not Verified SAN controlled either by the Central or any State Government, or a Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2021.10.08 18:04:33 IST

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widow or physically handicapped persons, it shall be presumed, unless the contrary proved, that the requirement by the landlord with reference to clause (a) or clause (b), as the case may be of Section 23-A is "bona fide"."

14. Undisputedly, there is a relationship of the tenant and landlord

between the parties. In the case of Anar Devi (supra), it was held

by the Apex Court that in Section 23(A) of the Act, expression "if he

is the owner thereof" does not require the landlord to plead in his

application his ownership of the accommodation and establish the

same by adducing evidence aliunde. For the ready reference,

paragraph 17 of the judgment reproduced below:-

"17. Our answer to the question, therefore, is that the use of the words "if he is the owner thereof' used in clause (b) of Section 23-A the Act does not require of the landlord who makes an application thereunder for recovery of possession of accommodation from the tenant to plead therein that he is the owner of such accommodation and establish by evidence aliunde that he is such owner, for succeeding in such application even though these words may enable a tenant to contest such application on the ground that the landlord is not the owner of the accommodation if he is not inhibited from doing so under Section 116 of the Evidence Act."

15. Now the question for consideration before the Rent Controlling

Authority and also before this Court is as to whether

landlady/respondent herein genuinely requires the accommodation

in question to satisfy the bona fide need and secondly she has no

other suitable alternative accommodation in the city. The case has

to be examined from that angle. The Rent Controlling Authority

having gone through the entire material on record, found and gave Signature Not Verified SAN

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2021.10.08 18:04:33 IST

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a categorical finding that the accommodation is bona fide required

by the landlady and there is no other suitable alternative

accommodation available in the city and while holding so passed

the impugned order.

16. Now, the important question which crops up for consideration

is as to what is meant by bona fide requirement. The Honble apex

Court has considered the term of 'bona fide' in the case of Shiv

Sarup Gupta Vs. Dr. Mahesh Chand Gupta (1996) 6 SCC 222,

and held as under:-

".............the term bona fide or genuinely refers to a State of mind. Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bona fide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire in contradistinction with a mere pretence or pretext to evict a tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant....."

18. In the aforesaid case in para 13, it was further observed that:--"

..... Once the Court is satisfied of the bona fides of the need of the landlord, for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one - accommodation available to the landlord his subjective choice shall be respective by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Signature Not Verified SAN Court would not in such a case thrust its own wisdom upon Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2021.10.08 18:04:33 IST

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the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against."

17. The Apex Court has further in the case of Ragavendra

Kumar Vs. Firm Prem Machinery and Co., reported in 2000

MPLJ 186, relying on the decision taken by it in Prativa Devi Vs.

T. V. Krishnan : (1996) 5 SCC 353, held in para 10 of the

judgment that:--

"..... It is a settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter."

18. The case is therefore to be examined from that point of view,

keeping in mind the provisions of Section 23-A of the Act and

further the provisions of Section 23-D (3), which stipulates that in

respect of an application by a landlord, it shall be presumed, unless

the contrary is proved, the requirement by the landlord with

reference to clause (a) or clause (b) as the case may be of Section

23-A is bona fide. Presumption under Section 23(D) of the Act

regarding bona fide need is on the tenant, not on landlord, so the

applicant has to rebut this presumption. There is nothing on record

that the applicant had rebutted this presumption.

19. Now the question is that whether the impugned order is in

conflict with the order of injunction passed by the Civil Court?