Dharmendra Kumar Motiwala vs Smt. Vidya Thakur

K.K. Lahoti, J.

This revision is directed u/s 23-E of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as ''Act'' for short) assailing the order dated 30.12.2004 passed by the Rent Controlling Authority, Jabalpur in case No. 4-A/90(7)/1996 by which an order of eviction has been passed against the petitioner.

The learned counsel appearing for the petitioner has assailed the impugned order on following grounds :

(a) That the plaintiff failed to prove that she requires suit accommodation bonafidely.

(b) That the accommodation in possession of plaintiff is insufficient has not been proved. At the time of filing of application the family was consisting plaintiff, her two daughters and one son. During the pendency of litigation both the daughters have been married and the son also got married, so the necessity has been reduced and the present accommodation which is in possession of the plaintiff is sufficient to meet out the requirements, if any.

(c) That there is no bonafides of the plaintiff as the plaintiff who was residing in a very good accommodation at the time of filing of present application, got one accommodation vacated by Mahendra Baghela, which is just above the suit accommodation and after getting the possession of aforesaid accommodation the plaintiff vacated previous house which was a big house and on getting this accommodation the necessity has come to an end, and the plaintiff sold the previous accommodation which shows her malafideness.

(d) That the present accommodation in which plaintiff is residing also consists 3 rooms, 1 veranda and 1 kitchen. How it is insufficient has not been explained.

(e) That the plaintiff has got a big accommodation in partition and present accommodation is not at all required to the plaintiff. The case of plaintiff in the application was that the suit accommodation required for the plaintiff for the residence of herself and her children, while in the evidence it has been stated that the plaintiffs married son wants to reside separately and the Rent Controlling Authority relying on the aforesaid statement passed the order of eviction. The evidence, contrary to the pleadings ought not have been looked into.

(f) That there is malafide intention for filing of present application as the landlord after getting possession of the accommodation vacated by Mahendra Baghela let out her previous accommodation to some other and also constructed room on the 1st floor, which has been again let out by the plaintiff. In the circumstances, the need is not bonafide. Reliance is placed to a judgment of this Court in Ramrichhpal and another Vs. Jugalkishore and another [1973 JLJ - SN 105] and Hariram Soni Vs. Smt. Sushila [1989 (II) MPWN 143] and submitted that this revision be allowed and the impugned order of eviction be set aside.

Learned counsel appearing for the landlord supported the order of eviction and submitted that the need is bonafide. The plaintiff who was residing in a dilapidated house immediately on getting good accommodation shifted to it. The accommodation which was vacated by Mahendra Baghela and at present occupied by the plaintiff is insufficient for the necessity of plaintiff. The plaintiff is having a grown-up family and is enjoying a good position in the society. Her father-in-law was member of Legislative Assembly and plaintiff herself is the elected member of Panchayat. Looking to the status of plaintiff and grown-up family, the present accommodation is insufficient. That the previous house in which the plaintiff was residing at the time of filing of application for eviction was in a dilapidated condition. The roof of the house was Kachcha of''Khaprel'' and it was not a habitable house, and on getting alternative accommodation vacated by Mahendra Baghela, plaintiff shifted immediately. Though during the pendency of application plaintiffs two daughters have been married, but still the need is continuing. At the first floor there is no proper place for children, guest and visitors, and looking to the status of the family of plaintiff the suit accommodation is required bonafidely. The plaintiff has proved her case for additional accommodation and the Rent Controlling Authority has rightly passed the order of eviction. That the revisional power of this Court u/s 23-E of the Act is limited one and cannot be expanded to re-appreciate the entire evidence. Until and unless in the finding recorded by the Rent Controlling Authority some perversity or error is pointed out interference is not needed. Reliance is placed to the judgment of this Court in Smt. Geetabai and Others Vs. Babulal and Others, and Nathi Devi Vs. Radha Devi Gupta [2005 (1) MPJR 29] and submitted that this revision may be dismissed.

To appreciate rival contention of the parties, it will be appropriate to refer the factual position of this case. The plaintiff Smt. Vidhya Thakur falls within the category of landlord, specified u/s 23-J of the Act. As her husband has died long back, she filed application u/s 23-A of the Act on 12.2.1996 seeking eviction against the petitioner. The grounds stated in the application are that plaintiff is residing in a house situated at Wright Town bearing no. 2337 consisting of 3 rooms and one Veranda, as per map enclosed to the application. The plaintiff was having two daughters aged 16 to 14 years and one son aged 12 years. All were studying in the local schools. The plaintiff was not having suitable accommodation for the children for their study and separate living. That the guests were regularly coming to the plaintiff, so their convenience was to be maintained. The father-in-law of plaintiff was a reputed and worthy agriculturist. He was also member of Legislative Assembly and was enjoying reputation in the District. The house in which the plaintiff was residing at the time of filing of application was a dilapidated house and some of the portion was dangerous for habitation. The first floor of the suit accommodation in which Mahendra Baghela was tenant, vacated it in which plaintiff shifted her residence, but the aforesaid accommodation is small one, while the suit accommodation is having sufficient accommodation including a courtyard. The plaintiff has constructed one store room on the 2nd floor. The plaintiffs son Abhay Singh has also got married. On the aforesaid ground the application was filed for eviction of (sic).

The petitioner filed reply in which the petitioner denied the averments of application and submitted that the accommodation in which the plaintiff was residing was a sufficient accommodation. The suit accommodation is a joint accommodation having other co-owners of equal share and the plaintiff is not the exclusive owner nor the defendant is the exclusive tenant of the suit premises. The suit accommodation was used for office and residence from very beginning. As the non-applicant is an Advocate and engaged in the legal profession and was running his office in the suit accommodation. The plaintiff has let out one accommodation to Prachay Sanstha (a branch of handicapped persons). That the plaintiff is an influential landlady. Her sister-in-law is Chairman of DRDA and is posted at Collectorate, Jabalpur. The plaintiff and her nephew Goli Thakur assaulted wife of the defendant and a case u/s 448, 294, 323, 336 read with section 34 of I.P.C., was registered at Police Station Madan Mahal, Jabalpur and a challan has been filed in which the plaintiff and her nephew Goli Thakur have been released on bail. On the aforesaid grounds the application was contested by the petitioner.

The Rent Controlling Authority framed the issue and recorded evidence of both the parties. The application was allowed by order dated 10.11.1997 against which the petitioner preferred a revision before this Court. When the revision was pending Mahendra Baghela vacated the accommodation which was just above the suit accommodation. This Court by order dated 9.10.2003 allowed the application filed by the petitioner seeking amendment in respect of accommodation vacated by Mahendra Baghela and remanded the matter to the Rent Controlling Authority to decide it afresh, in accordance with law. After remand both the parties incorporated amendment and consequential amendment and also adduced further evidence in the matter. Thereafter the Rent Controlling Authority considering the entire material and evidence, passed impugned order directing eviction of petitioner.

Now the contention of petitioner may be seen. First contention of petitioner is that the plaintiff is having accommodation which is just in front of the suit accommodation in which the plaintiff at the time of filing of present application before the Rent Controlling Authority was residing. The plaintiff stated that the aforesaid accommodation was in a dilapidated condition and for the need of money the aforesaid accommodation was sold out and at present no such accommodation is available and the purchaser has demolished the aforesaid accommodation. On 28.11.2006 during the course of hearing when this contention was raised by the petitioner, the respondent disclosed the aforesaid fact. On the aforesaid date the petitioner was asked specifically whether he was interested to occupy the aforesaid accommodation, which was in possession of the plaintiff at the time of filing of application. Then the petitioner also admitted this fact that at present there is no accommodation in existence and open piece of land is lying on the spot and petitioner refused to accept the aforesaid accommodation. As the accommodation in which the plaintiff was residing at the time of filing of suit has been sold out and at present no accommodation is in existence, so there is no question of consideration of aforesaid accommodation as an alternative accommodation.

The second contention which is very material may be seen. The contention of plaintiff is that the accommodation in which plaintiff is residing at present is small one having only 3 rooms, one Veranda and Kitchen and there is no courtyard in the accommodation. The suit accommodation is just below the accommodation which has been vacated by Mahendra Baghela, meaning thereby that at present on first floor the plaintiff is residing and on the ground floor the tenant is residing. In the suit accommodation there is no courtyard. Apart from this the map reflects that the accommodation is having 3 rooms, which are in compartment and are not independent rooms. The plaintiff at present is having family consisting herself, her married son and his wife, and one grand son. Apart from this two daughters are married who may be visiting the plaintiff, The plaintiff is enjoying a reputation in the society as her father-in-law was member of Legislative Assembly. She herself is an elected member of Panchayat, meaning thereby the plaintiff is enjoying a status in the society and regularly some guests are visiting to the plaintiff. She is not having any drawing room and guest room. Apart from this some more accommodation is required when her daughters are visiting her. The suit accommodation though consisting of 3 rooms, 1 Veranda and kitchen cannot fulfill the need of plaintiff, and it cannot be said that it is sufficient for the convenient living of plaintiff. The present accommodation is fulfilling the bare need but a suitable, convenient and comfortable accommodation fulfilling the requirement of plaintiff as per her family and status may be treated as necessity of plaintiff and for this purpose accommodation required by the plaintiff may be treated as a bonafide need of plaintiff. The plaintiff is also having a grand son and also requires some place for his playing and present accommodation in which the plaintiff is residing is having no courtyard. The child may require some open place and the plaintiff may also require some open place for her household work. If the plaintiff requires the suit accommodation for the aforesaid all necessities, then her bonafide cannot be doubted merely on the ground that the house in which the plaintiff is residing is fulfilling her bare need. The entire purpose of legislation is on one hand to give protection from unscrupulous landlords for the eviction of tenants from their whims and fancies, but on the other hand also provides ground of eviction for the landlord for fulfilling his bonafide need by evicting the tenant from the tenanted accommodation. As stated hereinabove the bonafide need and requirement of accommodation has to be adjudged in accordance with the status, life style and living habits of plaintiff, which may vary from case to case. In the present case the landlady is also an elected representative of Panchayat enjoying good reputation, requires some more accommodation for her residence. Three bedrooms in compartment are apparently insufficient for the necessity of landlady having four members in her family. The grandson after sometime will require an additional room for his living and studies. The landlady also requires additional accommodation for stay of guests and also for her daughters. Apart from this one drawing room for the visitors is also required. In these circumstances the plaintiffs bonafides cannot be doubted.

At the time of filing of application the plaintiff was residing in a Kaccha dilapidated house. On getting good accommodadtiori of Mahendra Baghela who vacated first floor of plaintiff, the plaintiff immediately shifted. This shows the need of plaintiff who wants to reside in a good habitable house. The Rent Controlling Authority after due appreciation of evidence found that the need of plaintiff still continues and the suit accommodation is required by the plaintiff for her bonafide need is, in accordance with law and needs no interference of this Court.

In this case petitioner herein has filed documents showing partition of family of plaintiff with her brother-in-law. As per this document which is dated 30.3.1999 shows that only the suit accommodation and first floor of it fell into the share of plaintiff. In these circumstances, the contention of petitioner that the plaintiff is having other house has no merit and is accordingly repelled. The present litigation is pending since last more than 10 years. During this period the circumstances have changed and the plaintiff s two daughters have been married and son of plaintiff has also been married. If the plaintiffs son wants to reside separately and stated in this regard before the Rent Controlling Authority and the Rent Controlling Authority has believed it, then no fault is found in the aforesaid findings. The entire enactment of Chapter III-A in the Act is for eviction of tenant on the ground of bonafide requirement by speedy trial and for a long period of 10 years plaintiff who is specified landlord u/s 23-J of the Act could not get the accommodation, then the entire purpose of enactment of Chapter III-A shall frustrate. On mere technicalities or on the basis of minor discrepancies, the plaintiff cannot be non suited. This is second round before this Court. On previous round the matter was remitted back to the Rent Controlling Authority for considering the subsequent events. As the plaintiff got accommodation of Mahendra Baghela and this Court found that it may be suitable for the plaintiffs residence and need is fulfilled, but the plaintiff even after remand proved that her need is still continuing and the suit accommodation is required for the residence of herself and her family. In these circumstances the Rent Controlling Authority has rightly passed the order of eviction in which no fault is found.

In the result this revision has no merit and accordingly it is dismissed. While dismissing the revision it is found appropriate to allow some time to the petitioner to vacate the suit accommodation, but on following conditions:

That the petitioner herein to file an undertaking before the Rent Controlling Authority that he shall vacate the suit accommodation on or before 30th April, 2007 positively without creating any hindrance or third party interest in the suit accommodation.

The petitioner shall deposit all arrears of rent, if any, costs of litigation within a period of thirty days from today and thereafter continue to deposit the rent as required u/s 13 of the Act.

On fulfilling the aforesaid conditions the Rent Controlling Authority shall permit petitioner to occupy the suit accommodation upto 30th April, 2007, failing which the respondent shall be entitled to get eviction of tenant through the process of law.

The respondent shall be entitled for the costs of this revision. Counsel fee Rs. 1,000/- (Rupees one thousand only).