Tripura High Court

Smt. Debjani Bhowmik vs Sri Saikat Dasgupta on 8 February, 2021

                                 THE HIGH COURT OF TRIPURA
                                                AGARTALA

                    CRP No.24 of 2020
                    1.    Smt. Debjani Bhowmik,
                          wife of Dr. Arup Bhowmik,
                          22, Office Lane, Agartala 799 001
                    2.    Dr. Arup Bhowmik,
                          son of late Ananda Mohan Bhowmik,
                          22, Office Lane, Agartala 799 001

                                                              ;;;;;...
                                                                           ............ Petitioner
                                 - Vs -


                    Sri Saikat Dasgupta,
                    Son of Shri K. L. Dasgupta,
                    6, Office Lane, Agartala 799 001
                                                                         ............ Respondents

BEFORE THE HON‟BLE MR. JUSTICE S. TALAPATRA

For the petitioner : Mr. D. K. Biswas, Advocate Mr. P. Datta, Advocate For the respondents : Mr. Somik Deb, Advocate Date of hearing : 01.12.2020 Date of judgment & order : 08.02.2021 Whether fit for reporting : YES

Judgment and Order This is a petition under Article 227 of the Constitution

of India challenging the judgment dated 26.02.2020 passed by the

District Judge, West Tripura, Agartala in RCC(Revision) 03 of 2019

whereby the said revisional court in exercise of its power as CRP No.24 of 2020

conferred by Section-22 of the Tripura Buildings(Lease & Rent

Control) Act, 1975 has reserved the judgment and order dated

23.11.2018 passed by the Rent Control Court in RCC Case No.22

of 2017 and the judgment and order dated 06.07.2019 passed in

RCC Appeal No.2 of 2019 by the Civil Judge, Senior Division, Court

No.2, West Tripura, Agartala observing that the landlords who

filed the petition for eviction of the respondent herein, being RCC

Case No.22 of 2017, are held not entitled to get the relief of

eviction of the respondent from the suit premises, as prayed. The

judgment and order of the Rent Control Court dated 23.11.2017

delivered in RCC No.22 of 2017 was affirmed by the appellate

court [the Civil Judge, Senior Division, Court No.2, West Tripura,

Agartala] by the judgment dated 06.07.2019 in RCC Appeal No.02

of 2019.

02. The petitioners herein are the joint owners of the suit

premises, a shop, having area of 154 sq. ft. situated on the

ground floor in a G+ 2 storied building. In that building, three

rooms are occupied by the landlords for the pathological clinic and

medicine business. Out of the rest three rooms, two rooms were

let out to the tenants (Subhrajit Das and Partha Roy) and the last

room was given on lease to the tenant (the respondent herein) by CRP No.24 of 2020

the petitioners vide the deed of lease bearing No.1-2440 of 2011

for a fixed term of five years with effect from 27.05.2011 ending

on the last day of month of May, 2016. For purpose of tenancy, as

created by the said lease deed, the rent was fixed for the first

three years @Rs.3500/- per month and for the remaining two

years @Rs.3800/- per month. It is an admitted position that the

rooms of the first floor and the second floor are occupied by the

petitioners for their residence and clinic and according to the

petitioners there is no further space to set up any dental clinic for

their daughter Sarbani Bhaumik (PW-2) who is by occupation a

Dental Surgeon having obtained the Bachelor Degree on Dental

surgery in December, 2015. The petitioners herein had contended

that the lease period was determined for five years having an eye

that their daughter (PW-2) would complete the BDS course and

she will be accommodated in the said shop for opening her

chamber. According to the petitioners, the shop rooms as let out

to Subhrajit Das and Partha Roy, two other tenants, are not

suitable for opening of a chamber for their daughter. Lease-term

has expired on 31.05.2016 but, as a matter of reminder, the

landlord, the petitioners herein, issue notice to the tenant [the

respondent] asking him to vacate the premises. The said notice

CRP No.24 of 2020

was issued on 27.05.2015. In response thereof, the respondents

asked for extension of the lease period for a further period of five

years in terms of 'subsequent oral agreement', but disputed by

the landlords. Another notice dated 24.02.2016 was issued by the

petitioners asking the tenants (the respondents herein) to vacate

the premises, otherwise the tenants will be liable to pay

compensation @ Rs.2000/- per day.

03. The tenant by the reply dated 14.03.2016 denied to

vacate the suit premises. The tenant filed the suit being TS 59 of

2016. Accompanied with that suit, a petition for temporary

injunction was filed in the court of the Civil Judge, Senior Division,

West Tripura. An ad-interim for injunction was passed on

04.07.2016 restraining the landlords from evicting the petitioner

forcefully. The tenants are to be evicted in accordance with due

course of law. Being aggrieved by the said order, the petitioners

filed a miscellaneous appeal being Misc. Appeal No.21 of 2016.

Even a petition under Article 227 of the Constitution of India being

CRP No.01 of 2017 was filed which was pending when the

impugned judgment and order had been passed.

CRP No.24 of 2020

04. Despite the notice duly served on the tenant (the

respondent herein) he did not take any initiative to shift his

medicine business from the premises. Even though, new medicine

shops coming up at Melarmath, Netaji Chowmuhani and Fire

Brigade Chowmuhani, the petitioner has not searched

accommodation in the area. Consequently, the landlords filed the

petition for eviction of the tenant under Section 12 of the Rent

Control Court being RCC 22 of 2017. The tenant denied the lessor-

lessee relationship between the parties. The tenant has also

contended that the claim of the landlords, the other two shops are

not suitable for chamber of a dental surgeon, was not correct.

There was no bona fide need of the landlords as one of the

tenants namely Subhrajit Roy had vacated his shop as there was

serious problem in having his license for running the medical

business renewed by the competent authority, inasmuch as the

landlords did not issue the No Objection Certificate. On

culmination of the trial, while passing the order for vacation of the

suit premises, the Rent Control Court has observed that the

landlord is the best judge of his own requirements and the court

cannot express any concern by dictating the landlord as to how

and in what manner he should enjoy his premises. In this regard,

CRP No.24 of 2020

reliance has been placed on Prativa Devi vs. T.V. Krishnan

reported in (1996) 5 SCC 352. It has been further observed by

the Rent Control Court that in that cross-examination, the tenant

has stated that he did not know how much space was required for

opening a dental clinic, whereas the landlords had asserted that

for opening a dental clinic, for their daughter who is a Dental

Surgeon requires that shop space. The Rent Control Court by the

judgment and order dated 23.11.2018 directed the respondent to

vacate the premises. The respondent filed an appeal under Section

20 of the Rent Control Act against the said judgment. On the

aspects of requirement of Section 12(3) of the RCC Act, the

appellate court had observed that onus lies with the tenant to

show that the landlord had another building or accommodation in

his possession in the same town or village to meet his

requirement and if the said onus is discharged, then the burden

shifts upon the landlord to show that despite that situation, it will

be just and proper to evict the tenant on the ground of special

reason. The plea that was raised by the tenant in the course of

hearing of the appeal was that Section-2(c) of the Rent Control

Act defines 'the family' as the relation to a person, the wife or

husband of such person, his or her children, grand children,

CRP No.24 of 2020

parents, brothers and any other relative dependent on him and

Section-2 of the Act itself starts with obstante clause that 'unless

the context otherwise requires'. Dependency should be proved but

in the case in hand there is no evidence whether the daughter of

the landlord was married or not and was dependent or not. It has

been also asserted for the tenant that Section 12(3) of the said

Act casts a duty to show that suitable accommodation in the same

locality was available for the tenant. In this case, the landlords

showed some alternative accommodations in Netaji Chowmuhani,

Melarmath and Fire Service Chowmuhani area which were situated

according to the tenants at a considerable distance away from the

locality of the present suit premise. So far the present location is

concerned, it is advantageous for carrying on business of

pharmacy as the IGM Hospital is situate very near to the shop.

05. The counsel for the petitioners herein has submitted

that such plea cannot come in the way of eviction of the tenant.

Moreover, in a revision petition the District Judge has been

conferred with minimal power to scrutinize the judgment passed

by the appellate court. Such power is restricted to decide whether

it suffers from illegality, irregularity and impropriety. Having

referred to the lease deed [Exbt.4], it has been argued that the CRP No.24 of 2020

tenure of the tenancy expired on 31.05.2016. Thus the tenant was

duty bound to surrender the vacant possession of the premises

but he did not do so, even though the notice was served by the

landlords.

06. The tenant by filing the reply has denied that the

petitioners (the landlords) have made out any case to get the

order of eviction or to put the landlord in possession of the

building for meeting their bona fide need within the meaning of

Section 12(3) of the Rent Control Act. From the records, it

appears that the petitioners [in the original proceeding] adduced

two witnesses namely Arup Bhaumik [PW-1] and Dr. Sarbani

Bhaumik [PW-2]. It further appears that the tenant (the

respondent herein) had also adduced two witnesses including

himself [DW-1] and one Jatan Sarkar [DW-2]. PW-1 introduced as

many as 14 (fourteen) documents [Exbt.1-14] including various

professional documents, the lease deed/rent agreement [Exbts.2

and 3] and copies of the notices [Exbts.6-9]. Similarly, DW-

1/OPW-1 has submitted as many as 13 (thirteen) documents

including the rent payment notice. Before recording the evidence,

the Rent Control Court framed the following points for

adjudication:

CRP No.24 of 2020

(i) Whether the case is maintainable?

(ii) Whether the landlord petitioners have bona fide need of the tenanted premises for his own occupation or for the occupation by any member of his family dependent on him?

(iii)Whether the landlord petitioners have another building of their own in their possession in the same town or village?

(iv) Whether the tenant OP is dependent on the livelihood mainly on the income derived from any trade or business carried on such building and there are no other suitable building available in the locality for the tenant Op to carry on his trade or business?

(v)Whether the tenant OP is liable to be evicted from the tenanted premises and is to be directed to put the landlord petitioners in possession of the schedule premises removing all articles from the premises?

(vi)Whether the landlord petitioners are entitled to compensation in this case and if so what would be the amount of compensation to which they are entitled to?

(vii)Whether any other relief/reliefs to which the landlord petitioners entitled?

07. After recording the evidence and on appreciation

thereof, the Rent Control Court has observed that the bona fide

need and the reasonable requirement being the same thing has

been established by the petitioners. Even the Rent Control Court

has observed that from the evidence there is nothing to

substantiate that the landlord petitioners [in the original

proceeding] have another building of their own in their possession

in the same town or village. Thus this plea has also been

discarded by the Rent Control Court. Having regard to Section

CRP No.24 of 2020

12(3) of the Rent Control Act, it has been observed by the Rent

Control Court the second proviso to Section 12(3) stipulates that

the Rent Control Court shall not give any direction to the tenant to

put the landlord in possession, if such tenant is depending for his

livelihood mainly on the income, derived from any trade or

business carried on from such building and there is no other

suitable building available in the locality to enable the person [the

tenant] to carry on such trade or business. Having referred to

decisions of this court in Haricharan Debnath vs. Mukunda Das

Roy Choudhury [the judgment dated 17.04.2014 delivered in

W.P.(C) No.393 of 2005 ] and Shiuli Sengupta vs. Sandhya

Basak [the judgment dated 31.05.2016 delivered in CRP

No.133 of 2015] it has been observed that the concept of onus is

well acknowledged, if that is read with the second proviso below

Section 12(3) of the Rent Control Act the purpose will surface

unambiguously. If the initial burden is discharged by the landlords

[the owners], it shall shift to the tenant to prove the statement

made by the landlord is hoax or in reality no such building is

available in the locality. On the final question that whether the

tenant be directed to vacate the possession and handover the

possession to the landlords, it has been observed that the tenant

CRP No.24 of 2020

has not been able to show either that the petitioners [in the

original proceeding] have another building of their own or in their

possession in the same town or village or that the tenant is

depending upon his livelihood mainly on the income derived from

any trade or any business carried on from such building and there

is no other suitable building available in the locality for him to

carry on such trade or business. The other issues are ancillary and

reference to those may be avoided presently.

08. Having observed as such, the tenant was directed to

vacate the premises and to put the landlord in possession. It has

been pleaded by the landlords that defying their demand to vacate

the room, the tenant has been continuing in the possession. In the

schedule of the said petition [before the Rent Control Court] the

description of the premises has been provided. Further, in the

tenancy (lease) agreement dated 27.05.2011, detailed description

of the said premises has been given. Tenure of the tenancy was

for five years starting from 01.06.2011, as stated earlier.

09. Being aggrieved by the judgment dated 23.11.2018

passed in RCC 22 of 2017 by the Rent Control Court the tenant

(the respondent herein) filed the said appeal under Section 20 of

CRP No.24 of 2020

the Rent Control Act. The appellant court having perused the

grounds of objection has culled out one question to determine the

appeal, the said question is whether the impugned judgment

suffers from infirmity due to improper appreciation of evidence

and incorrect interpretation of Section-12(3) of the Act.

10. The appellant (the respondent herein) has

emphatically stated that the respondents (the landlords) have

failed to prove that their daughter is 'dependent upon them' and

opening of her dental clinic is a bona fide need. It has been

further contended that if the tenant is dependent for his livelihood

on the income derived from any business carried out in such

rented premises and there is no suitable building in that locality or

the available premises is unsuitable to run his business, then the

tenant shall not be subjected to the order of eviction. It has been

also asserted that the petitioners (the landlords) have failed to

prove that all the requirements of Section-12(3) of the Rent

Control Act. The appellate court while affirming the judgment of

the Rent Control Court has observed that the term 'family'

appearing in Section-12(3) of the Rent Control Act provides three

categories of persons to come within the domain of family as

defined in Section-2(c) of the said Act. The daughter being the CRP No.24 of 2020

children falls definitely within the domain of the family. For that,

the other factors of dependency are not that material. In Punjab

State Co-operative Supply and Marketing Federation

Limited vs. Amit Goel and Another reported in 204 (2013)

DLT 63, it has been observed that:

"the law is settled that unless shown to the contrary, the presumption would be in favour of the landlord‟s need and a catena of other judgments. Customarily or in common parlance a dependent would be defined as any person who is reliant on another either for financial or physical support for sustenance of life. It is pertinent to note that the word dependent has nowhere been defined in the Act. Rather, the legislators consciously and deliberately have used the words „any member of family dependent on the landlord‟ instead of defining a clear degree of relations so as to construe a wider meaning to the aforesaid words a man is a social creature and part of a complex societal system involving myriad of relations from which he cannot be isolated."

Thereafter another decision of the Delhi High Court has

been relied by the appellate court being M/S. Jhalani Tools

(India) Pvt. Ltd. vs. B.K. Soni reported in AIR 1994 Delhi 167

where it had been held that the requirement of the married

daughter can also be considered as the bonafide need. The apex

court in Corporation of the City of Nagpur vs. The Nagpur

Handloom Cloth Market Co. Ltd. reported in AIR (1963) SC

1192 has interpreted the family in the following manner:

"But the expression 'family' has according to the context in which it occurs, a variable connotation. It does not in CRP No.24 of 2020

the setting of the rules postulate the existence of relationship either of blood or by marriage between the persons residing in the tenement. Even a single person may be regarded as a family, and a master and servant would also be so regarded."

11. A Kerala High Court decision in Raghavan vs.

Kelappan reported in 2006 (1) KLT 1 (Full Bench), has dealt

with the similar question. It was held in that report that in the

socio-economic condition of our country, the expression 'family'

has to be given a wider meaning which would be elastic and it has

to be determined on the facts and circumstances of each case and

the status of the dependent in the family. In Ismail vs. Kesavan

reported in 2004(2) KLT 56, Kerala High Court had further

occasion to observe thus:

"Dependency does not mean financial dependency, but dependency for the building which belongs to the landlord. In our society generally son, daughter, son-in-law, daughter-in-law, brother, sister etc. are members of the family and would in many cases depend upon the head of the family. The Kerala Rent Control Act does not define the term 'family'. But what constitutes the family in a society depends upon ancestry, birth, blood relations, common lineage, line of descent and the habits and ideas of persons constituting the family. In short its ambit has to be determined with regard to the socio-economic mileu of the parties."

[Emphasis added]

12. The another decision in Prathapan vs. Rama

Warrier reported in 2004(2) KLT 559, the Kerala High Court

has dwelled upon construction of the family and observed that CRP No.24 of 2020

there may also be cases where sisters, brothers, brothers-in-law,

sisters-in-law be treated as members of the family and it all

depends upon the family relations and family bonds.

13. The appellate court has affirmed the judgment of the

Rent Control Court on observing that a bare perusal of the 2nd

Proviso to Section-12(3) of the Rent Control Act makes it

abundantly clear that the twin conditions set out in the proviso are

cumulative and not alternative. It means in order to establish a

special case under the 2nd proviso, the tenant must satisfy both

the conditions together and he cannot prove anyone, bearing the

other. In this case, from the pleadings and evidence, it has

surfaced that the appellant (the respondent herein) is dependent

upon the pharmacy business run by him at the rented premises.

Hence the solitary question remains to be decided, is that is there

any suitable building, available in the locality for the tenant, to

carry on his trade or business. Having referred to Shiuli

Sengupta (supra) the appellate court has observed that the

concept of 'owner' is well acknowledged, even it is read with the

2nd proviso below Section 12(3) of the Rent Control (RCC) Act. In

such circumstances, after discharge of the initial onus by the

landlord/landlady it shall invariably shift upon the tenant to prove CRP No.24 of 2020

that such statement made by the landlords is hoax and in reality

no such building is available in that locality. The Rent Control

Court could have referred Bega Begam vs. Abdul Ahad Khan

reported in AIR 1979 SC 272, Shib Swarup Gupta vs. Dr.

Mukesh Chandra Gupta reported in AIR 1999 SC 2507 and

Raghunath G. Panhale vs. M/s Chaganlal Sundarji & Co.

reported in AIR 1999 SC 3864.

14. In Bega Begam (supra), the apex court has observed

on the concept of bona fide need as under:

"It seems to us that the connotation of the term 'need' or 'requirement should not be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for one landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts, prevalent in other State in the country."

15. The appellate court has categorically observed that the

term 'locality' has to be read with the definition of the word 'town'

given in section 2(i) of the Act. If the term 'locality' is construed to

supply a meaning to restrict an area within certain specified limit

as per the convenience of the tenant, then the same would be

contrary to the legislative intent and beyond the scope of the

enactment of Section 12(3) which is designed to deal with the

CRP No.24 of 2020

bona fide need of the landlord. Thus the appellate court of the

opinion that as the suggested places for relocation of the business

of the appellant are situated within 1 km distance from the rented

premises. Having properly construed the purport and the

legislative intent of the said enactment [Section 12(3)] these

places can be held to be situated within the locality of the rented

premises. The appellate court has properly appreciated the

evidence on record to affirm the finding of the Rent Control Court.

Thus the appeal was dismissed by the judgment dated

06.07.2019. The said judgment had been challenged in the

revision being RCC(Revision) 03 of 2019.

16. By the impugned judgment dated 05.02.2020, the

revisional court has reversed the concurrent finding holding that

the landlords (the petitioners herein) are not entitled to get the

eviction. The revisional court by the said judgment has observed

that from the evidence, it appeared that the rooms had been

vacated by two tenants, even though the landlords have stated in

their original petition that those two rooms are not suitable for a

dental surgeon's clinic. Even PW-2 (the daughter of the landlords)

have stated that those two rooms are not sufficient for setting up

of a dental clinic because of the size. The revisional Judge has CRP No.24 of 2020

noted that the size of the dental clinic has not been described and

as such the measurement is not established in the evidence.

Having referred to Afsar Shaikh & Anr. vs. Soleman Bibi &

Ors. reported in AIR 1976 SC 163, the revisional Judge has

noted that if we go by the provision of Section 12(3) of the Act, it

is the duty of the landlord to establish their bonafide need for the

suit premises. It is also prescribed in proviso 2 sub-Section 3 of

the Section 12 of the Act that the court shall not give any direction

for eviction if the landlord has another building of his own in his

possession in the said town or village except for special reason.

According to the revisional Judge such 'special reason' has not

been disclosed by the petitioners. Thus, the petitioners herein are

not entitled to get the vacant possession of the proceeding

premises. Further, it has been observed that the 2nd proviso of

sub-Section 3 of Section 12 of the Act is that the court shall not

give any direction of eviction of tenant if such tenant is dependent

for his livelihood mainly on the income derived from the business

carried in the said building and there is no other suitable building

available in the 'locality'.

17. The revisional Judge has referred Liaq Ahmed vs.

Habeed-Ur-Rehman reported in (2000) 5 SCC 708 where it CRP No.24 of 2020

has been observed by the apex court that the rent control

legislations have been acknowledged to be pieces of social

legislation which seek to strike a just balance between the rights

of the landlord and the requirements of the tenants. Such

legislations prevent the landlords from taking the extreme step of

evicting the tenants merely upon technicalities or carved grounds.

In that judgment Mangat Rai vs. Kidar Nath reported in (1980)

4 SCC 276 has been referred to hold that Rent Control Act shall

afford a real and sanctified protection to the tenant. That

protection should not be negated by giving a hyper-technical or

liberal construction of the language of the statute, else the object

of the Act may precipitate in its frustration. The similar principle

was adopted in Shiuli Sengupta (supra) by this court.

18. The revisional Judge having referred to Prativa Devi

(supra) observed that landlord is the best judge of his

requirement and the courts have no concern to dictate the

landlord as to how and in what manner he should live. But the

revisional Judge has negated that concept and interfered with the

concurrent judgment of the appellate court as stated above.

CRP No.24 of 2020

19. Mr. D. K. Biswas, learned counsel appearing for the

petitioners has submitted that the revisional Judge has committed

serious error by reversing the concurrent finding of fact.

Moreover, even after recording that the two rooms left by the two

tenants are not suitable for setting up a dental Surgeon's clinic,

the revisional Judge has observed that more particulars of the

vacated have not been provided. Hence, non-suitability of those

rooms cannot be held to have been established by the petitioners.

The said opinion comes straight in contrast to the law enunciated

by the apex court in Prativa Devi (supra). So far the availability

of a reasonable occupation is concerned, the revisional Judge has

wrongly relied on Deena Nath vs. Pooran Lal reported in

(2001) 5 SCC 705 inasmuch as the fact of that case is

distinguishable from this case. There was a requirement of a shop

and in the hand of the landlords one vacant shop was available. In

that background, the apex court did not entertain the claim of the

bonafide requirement, within the meaning of the rent control

statute and thus, the finding of the high court by interfering with

the concurrent judgment was affirmed. In the said judgment, it

had been categorically observed by the apex court in the

CRP No.24 of 2020

contextual facts that the interference was justified [in Deena

Nath (supra)].

20. Mr. Somik Deb, learned counsel appearing for the

respondent has referred a decision of the apex court in

Hindustan Petroleum Corporation Limited vs. Dilbahar

Singh reported in (2014) 9 SCC 78 on the scope of interference

in the revision vis-a-vis the rent control statute. The scope of the

high court's revisional power under Section 50(1) of the Karnataka

Rent Control Act, 1961 has been considered in the light of the

decision rendered in M.S. Zahed vs. K. Raghavan reported in

(1999) 1 SCC 439. It has been observed that the revisional

powers cannot be equated with the power of reconsideration of all

question of fact as a court of first appeal. But, it cannot be said

that the high court has no jurisdiction to go into the question of

correctness of finding of fact reached by the courts below on

relevant evidence. Section 50 of the said Act provides that the

evidence may be re-appreciated with a view to finding out

whether the orders of the courts below were legal or correct.

Having regard to the similar provision of Kerala Rent Control Act,

the apex court in Ubaiba vs. Damodaran reported in (1999) 5

SCC 645 had observed that the revisional power under the Rent CRP No.24 of 2020

Control Act may be wider than Section-115 of the Code of Civil

Procedure but it cannot be equated even with the second

appellate power conferred on the civil court under the CPC,

notwithstanding the use of the expression 'propriety', the

revisional court will not be entitled to re-appreciate the evidence

and substitute the finding in place of the conclusion of the

appellate authority. Thus, it is held that the high court has

exceeded the jurisdiction by re-appreciating the evidence. As

regards the revisional power under Section-25 of the Tamilnadu

Rent Control Act, the apex court in T. Sivasubramanuam vs.

Kasinath Pujari reported in (1999) 7 SCC 275 had occasioned

to observe that the revisional power under Section 25 of the said

Act is not an appellate power to 're-appraise or reassess the

evidence for coming to a different finding contrary to the finding

recorded by the courts below.'

21. In Dilbahar Singh (supra), having referred to the

previous judgments, the apex court has made some observations

as regards the meaning and scope of the terms 'legality or

propriety, regularity and correctness', In sequel, the apex court

has observed as regards the extent of the revisional power having

compared with the power available under Section 115 of the CPC: CRP No.24 of 2020

"The ordinary meaning of the word 'legality' is lawfulness. It refers to strict adherence to law, prescription, or doctrine; the quality of being legal.

The term 'propriety' means fitness; appropriateness, aptitude; suitability; appropriateness to the circumstances or condition conformity with requirement; rules or principle, rightness, correctness, justness, accuracy.

The terms 'correctness' and 'propriety' ordinarily convey the same meaning, that is, something which is legal and proper. In its ordinary meaning and substance, 'correctness' is compounded of 'legality' and 'propriety' and that which is legal and proper is 'correct'.

The expression "regularity" with reference to an order ordinarily relates to the procedure being followed in accord with the principles of natural justice and fair play.

We have already noted in the earlier part of the judgment that although there is some difference in the language employed by the three Rent Control Acts under consideration which provide for revisional jurisdiction but, in our view, the revisional power of the High Court under these Acts is substantially similar and broadly such power has the same scope save and except the power to invoke revisional jurisdiction suo motu unless so provided expressly.

None of these statutes confers on revisional authority the power as wide as that of appellate court or appellate authority despite such power being wider than that provided in Section 115 of the Code of Civil Procedure. The provision under consideration does not permit the High Court to invoke the revisional jurisdiction as the cloak of an appeal in disguise. Revision does not lie under these provisions to bring the orders of the Trial Court/Rent Controller and Appellate Court/Appellate Authority for re-hearing of the issues raised in the original proceedings.

We are in full agreement with the view expressed in Sri Raja Lakshmi Dyeing Works: (1980) 4 SCC 259 that where both expressions "appeal" and "revision" are employed in a statute, obviously, the expression "revision" is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression "appeal". The use of two expressions "appeal" and "revision" when used in one statute conferring appellate power and revisional power, we think, is not without purpose and significance. Ordinarily, appellate jurisdiction involves a re-hearing while it is not so in the case of revisional jurisdiction when the same statute provides the remedy by CRP No.24 of 2020

way of an 'appeal' and so also of a 'revision'. If that were so, the revisional power would become co-extensive with that of the trial Court or the subordinate Tribunal which is never the case. The classic statement in Dattonpant: (1975) 2 SCC 246 that revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the Code but, at the same time, it is not wide enough to make the High Court a second Court of first appeal, commends to us and we approve the same. We are of the view that in the garb of revisional jurisdiction under the above three Rent Control Statutes, the High Court is not conferred a status of second Court of first appeal and the High Court should not enlarge the scope of revisional jurisdiction to that extent. Insofar as the 3- Judge Bench decision of this Court in Ram Dass is concerned, it rightly observes that revisional power is subject to well- known limitations inherent in all revisional jurisdictions and the matter essentially turns on the language of the statute investing the jurisdiction. We do not think that there can ever be objection to the above statement. The controversy centers round the following observation in Ram Dass: (1988) 3 SCC 131, "...that jurisdiction enables the Court of revision, in appropriate cases, to examine the correctness of the findings of facts also...". It is suggested that by observing so, the 3- Judge Bench in Ram Dass has enabled the High Court to interfere with the findings of fact by re-appreciating the evidence. We do not think that the 3-Judge Bench has gone to that extent in Ram Dass. The observation in Ram Dass that as the expression used conferring revisional jurisdiction is "legality and propriety", the High Court has wider jurisdiction obviously means that the power of revision vested in the High Court in the statute is wider than the power conferred on it under Section 115 of the Code of Civil Procedure; it is not confined to the jurisdictional error alone. However, in dealing with the findings of fact, the examination of findings of fact by the High Court is limited to satisfy itself that the decision is "according to law". This is expressly stated in Ram Dass2. Whether or not a finding of fact recorded by the subordinate court/tribunal is according to law, is required to be seen on the touchstone whether such finding of fact is based on some legal evidence or it suffers from any illegality like misreading of the evidence or overlooking and ignoring the material evidence altogether or suffers from perversity or any such illegality or such finding has resulted in gross miscarriage of justice. Ram Dass does not lay down as a proposition of law that the revisional power of the High Court under the Rent Control Act is as wide as that of the Appellate Court or the Appellate Authority or such power is co-extensive with that of the Appellate Authority or that the concluded finding of fact recorded by the original Authority or the Appellate Authority can be interfered with by the High Court by re-appreciating CRP No.24 of 2020

evidence because revisional court/authority is not in agreement with the finding of fact recorded by the Court/Authority below. Ram Dass does not exposit that the revisional power conferred upon the High Court is as wide as an appellate power to re-appraise or re-assess the evidence for coming to a different finding contrary to the finding recorded by the Court/Authority below. Rather, it emphasises that while examining the correctness of findings of fact, the revisional Court is not the second Court of first appeal. Ram Dass does not cross the limits of revisional court as explained in Dattonpant."

[Emphasis added]

22. It has been mere lucidly outlined in Dilbahar Singh

(supra) that the revisional court is entitled to satisfy itself as to

the correctness, legality or propriety of any decision or order

impugned before it. However, to satisfy itself to the regularity, the

correctness or illegality or impropriety of the impugned decision or

the order, the high court shall not exercise its power as an

appellate court, particularly, to re-appreciate. The revisional court

re-appreciates or reassesses the evidence not for coming to a

different finding of fact. The revisional power cannot be equated

with the power of reconsideration of all question of fact as a court

of first appeal.

23. Mr. Deb, learned counsel has further submitted that

the daughter whether or not is dependent, has not been

established by the landlords and as such the tenant cannot be

evicted. In this respect, Mr. Biswas, learned counsel has referred CRP No.24 of 2020

two decisions of the Kerala High Courts being Ismail (supra) and

Prathapan (supra). In those judgments, the Kerala High Court

has held that since in the rent control statute, 'dependency' does

not mean financial dependency, but dependency for the building

[that is owned by the landlord]. The word 'family' in the context of

the rent control statute be given wider meaning, inasmuch as

what constitutes the family in a society, depends upon ancestry,

birth, blood relations, common lineage, line of descent and the

habits and ideas of persons constituting the family. Family

includes all those persons connected by agnation. The word

'dependency' connotes 'undue help' extended for depending upon

on another person. There is some nexus between the dependent

and the person on whom he depends. Dependency does not mean

financial dependency alone. It is not possible to provide a precise

definition of the word 'dependency'. In Sait Nagjee

Pursushotham and Co. Ltd. vs. Vimalabai Prabhulal and

Ors. reported in AIR 2006 SC 770, the apex court has observed

that it cannot be said that a person who is already having a

business at one place, cannot expand his business at any other

place in the country. It is true that the landlord wanted to expand

his business. It cannot be said that it is unnatural and for that

CRP No.24 of 2020

reason the eviction cannot be denied. It has been observed

categorically as follows:

"It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlords and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business. However, the trial court held in favour of tenant-appellant. But the appellate court as well as the High Court after scrutinizing the evidence on record, reversed the finding of the trial court and held that the need of establishing the business at Calicut by the landlords cannot be said to be lacking in bona fide."

[Emphasis added]

24. Mr. Deb, learned counsel has placed his reliance on

two judgments to contend that the finding on bonafide need by

the Rent Control Court and its affirmation by the appellate court is

untenable. In Deena Nath (supra) the apex court has observed

as follows:

"The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in praesenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the CRP No.24 of 2020

tenant evicted from the accommodation. Similar statutory provision is made in sub-section (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is duty-bound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable non-residential accommodation in his occupation in the city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind the statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment."

[Emphasis added]

25. Mr. Deb, learned counsel has pressed into service a

decision of the apex court in Adil Jamshed Frenchman vs.

Sardar Dastur Schools Trust and Others reported in (2005) 2

SCC 476 on bonafide requirement. It has been observed in Adil

Jamshed Frenchman (supra) that a bona fide requirement must

be an outcome of a sincere and honest desire in contra-distinction

with a mere pretext for evicting the tenant at the instance of the

landlord, claiming to occupy the premises for himself or for any

member of the family which would entitle the landlord to seek

ejectment of the tenant. It has been further observed that the

concept of bona fide need or genuine requirement needs a

CRP No.24 of 2020

practical approach, instructed by the realities of life. In Deena

Nath (supra) it has held that the bona fide requirement has to be

distinguished from a mere whim or fanciful desire. The bona fide

requirement is in praesenti and must be manifested in actual need

so as to convince the Court that it is not a mere fanciful or

whimsical desire.

26. In response to those submissions, placed for the

respondents, Mr. D. K. Biswas, learned counsel has referred to the

notice dated 04.12.2015 [Exbt.8] to this court introducing an

alternative submission, without abandoning the earlier

submissions. By the said notice dated 30.11.2015 issued in

response to the notice dated 27.05.2016 the tenant has sated

about one agreement, which has not been proved by him, and the

tenant has stated as follows:

"It is mentioned in the lease agreement that the same would be valid for 5 [five] years but subsequently, it was agreed upon the period of lease agreement will be increased for a further period of 5(five) years and the necessary relevant papers will be executed mutually between you and me, but you have issued the present notice in violation of said agreement."

Thereafter, the tenant has asserted in his notice as follows:

CRP No.24 of 2020

".....present it is very difficult to get a suitable building to shift my shop and I hope that you will allow me to run medicine business at lease for a further period of 5(five) years."

27. Mr. Biswas, learned counsel appearing for the

petitioners [the landlords] has submitted that the said 5 years as

well is over during the pendency of the proceeding. Hence, the

equity demands, the order of eviction as issued the Rent Control

Court be restored by reserving the judgment of the revisional

court.

28. Having appreciated the submissions made by the

learned counsel appearing for the parties and clinically examined

the judgment of the revisional court, this court is of the view that

the reasons assigned by the revisional Judge are erroneous in the

context of the case. The tenant did not adduce any evidence to

show that the statement made by the landlords by referring to the

areas where suitable buildings are available is not hoax and

correct. The tenant's retort that those spaces/premises are away

from the place where the proceeding premises situate, and he will

not have the advantage of business, if his shop is shifted

somewhere else. This reason cannot be sustained as that would

restrict the meaning of the word 'locality' extremely. The meaning

of 'locality' should not be so restricted, so that the very statute for CRP No.24 of 2020

eviction, as incorporated under Section 12 of the Rent Control Act

is frustrated. By accepting the said reason, the reivsional Judge

has committed a serious error in law which requires interference

forthwith. The manner in which the bonafide need in the context

has been appreciated is not only the re-appreciation of evidence

for coming to a different finding, contrary to the concurrent

finding of the appellate court, but the exercise is beyond the

ambit of the revision under Section 22 of the Rent Control Act

inasmuch, the statute provide that the revisiional court would

examine the records for purpose of satisfying itself as to the

legality, regularity and propriety of such order or proceeding and

may pass such order in reference thereto as it thinks fit. The

finding as returned by the appellate court is irregular, illegal or

improper [see Dilbahar Singh (supra)]. It is therefore set aside

and quashed.

29. The revisional Judge has inferred by a fresh

appreciation of the evidence that since the two rooms had been

vacated by other two tenants those will meet the requirement,

whereas the dental surgeon (PW-2) for whose need the premises

is required has categorically stated in the trial that size of those

rooms are so small that a dental clinic cannot be opened on those CRP No.24 of 2020

spaces. The revisional court can not have any business to weigh

the bonafide need of the landlord. The landlords have right to

weigh their bonafide need. In a recent decision in Balwant Singh

@ Bant Singh & Anr. vs. Sudarshan Kumar & Anr. [judgment

dated 27.01.2021 in Civil Appeals No.231-232 of 2021] a

three Judge Bench of the apex court has ironed out the creases by

clearly observing as under:

"It is not for the tenant to dictate how much space is adequate for the proposed business venture or to suggest that the available space with the landlord will be adequate."

Thus, the said finding of the revisional court is

unsustainable having regard to the law as noted above, inasmuch

as the landlords' need is not whimsical. They have established

their bonafide need which is seriously pressing them. Hence, the

said finding is liable to be interfered with and set aside. Thus, it is

ordered. Moreover, the notice [Exbt.8] shows that for more than 5

years the tenant had been in occupation beyond the lease-period.

That period of additional 5[five] years has already elapsed by

efflux of time and in the pendency of the proceeding. On

cumulative assessment of the evidence and the right in equity this

court is persuaded to interfere with the impugned judgment dated

22.06.2020. Accordingly, the same is set aside. The judgment and CRP No.24 of 2020

order dated 23.11.2018 passed by the rent control court in RCC

22 of 2017 is restored. However, the execution of the said order

shall remain postponed by 3 months from this day for enabling

the respondent shift his shop to a different place smoothly. But no

further extension of time will be allowed.

30. The respondent may avail this benefit of

postponement, only if he submitted an undertaking to the effect