^ v ^ IN THE HIGH COURT OF CHHATTISGARH AT ^ BILASPUR fC.G.V "A^n ^BB BstcK a.2 CIVIL REVISION N0..^^....2007 (Single Bench Civil) PETITIONER ^ (Tenant) RESPONDENT ^(Land-lord) SURESH KUMAR CHOUHAN aged about 65 years, S/o Shri L.B. Chouhan Contractor R/o Chaudhari Bada, Motipara, Durg (C.G.) VERSUS NISHIDH KANT CHOUDHARY aged about 65 years, S/o Late Shri N.K. Chaudhary C/o Slm Shabhnil Chaudhary Flat No. 8 A/l Shai-at "Co-operative Housing Society Kamgar Nagar Road, KURLA (East) MUMBAI (MS) MEMO OF REVISION (Civil Revision Under Section 23^E of The C.G. Accommodation Control Act 1961) HIGH COURT OF CHHATTISGARH AT BILASPUR APPLICANT CIVIL REVISION No. 33 OF 2007 Suresh Kumar Chouhan Versus RESPONDENT Nishidh Kant Choudhary O R D ER Postforl 2-1-2010 Sd/- N. K. Agarwal Judge /.^ HIGH COiyRT OF CHHATFISG^ARH AT BILASPUR CIVIL REVISION No. 33 OP 2007 APPLICANT Suresh Kiimai' Chouhan Versus Nishidh Kant Choudhary SINGLB BBNCH:- Hon. Shri N.K. Agarwal, J PRESENT:- Shri V.G. Tamaskar, Advocate, Advocate, for applicant. Shil Kishore Bhaduri, Advocate, for respondent., ORDBR (|2--1-2010) 1. The instant revision is directed under Section 23-E of the C.G. Accommodation Control Act, 1961 (briefly, the Act?) against the eviction order dated 15-1-2007 passed in Case No. 6A-90/2003-04 by the Rent Controlling Authority, Durg directing the applicant to deliver vacant possession of the suit accommodation to the respondent within a period of two monfhs from the date of passing of the order. 2. Brieffaets offhe case are as iinder:- 3. Indisputably, respondent is the owner of tlie suit house along with his brother Nitish Kant Choudhari; the applicant is tenant m fhe suit house; IIIrd Civil Judge Class I in Civil Suit No. 73-A/2002 passed eviction decree under Section 12(l)(m) and 12(l)(o) of the Act in favour of the respondent and his brother Nitish Kant Choudhary/ In an appeal preferred by the applicant, fhe appellate Com't stayed the judgment and decree and the same is pending corisideration before the District Judge, Durg. The respondent had also preferred eviction petition against ofher tenaiit NiKhil Baiierjee on fhe ground of bonafide need wifh respect to other premises in which eviction order was passed and the said tenant delivered its vacmit possession to the respondent on 23-2-2006. 4. The respondenf filed appUcation under Section 23-A of the Act against the applicant on the ground that he retired from |N^ €- the govermnent seryiceon 31-10-2003. He is ia need Qfsuit premises bonafidely for his residence and for that, smtable altemative accommodation in the city of Durg is not available. 5. Upon receipt ofnotice, the applicaiit urider Section 23-C of .•€• the Act filed an application supported by affidavit for seeking leaye of the Court to contest the eviction application. 6, The said application was dismissed by the Rent Controllmg Authority and eviction order was passed on 31-7-2004. The same was chaUenged by the applicant beforc tliis Coiirt tn Revision No. 149/2004. This Court sef aside the said order, allowed the applicant's application for leave to contest and remaiided fhe matter to the Rent Controllmg Aufhority for decision afresh. The appUcant filed his written statement in which he has also taken a plea that the respondent had also iastituted an application uiider Section 23-A of the Act against other tenant Nikhil Banerjee in which eviction order has already been passed by the Court; afflrmed by this Court in Revision No. 146/2004 on 28-6-2004 and in this way, need of the applicant, if any, stands satisfied. 7. The respondent amended his eviction application and added the ^oiind that other tenant Nikhil Banerjee has vacated the tenanted premises given on rent to him on 23-2-2006 but fhe same is not sufficient for the residence of the applicant as well as of his brother who is also livmg jointly with him and is also retired from Bhilai Steel Plant on 28-2- 2006. The non-applicant also amended his written statement Leamed Rent ControIIing Authority fi^med 3 issues, parties led their evidence. Leamed Rent Controlling Authority vide the impugned order passed fhe eviction order against the applicant. Hence this revision. 8. Shri V.G. Taiuaskar, leamed counsel appearing for tlie applicant, would submit fhat the impugned eviction order is bad as Civil Court had already passed a decree in Civil Suit No. 73-A/2003, there-against the appeal preferred by the applicant is pending in w^hich ftie eviction order has already M been stayed by tfae appellate Court, and therefore, eviction order passed by learned RCA is in conflict with fhe stay order passed by learned District Judge in CivU Appeal No. 5A/2006; a bai'e perusal of the evidence adduced by the respondent would reveal fhat no ground of eviction on ground of bonafide need has been made out by the respondent; tlie respondent is ah-eady in occupation of a double story building vacated by other tenant Nikhil Baneijee and his need, ifany, stalids satisfied. Since earMer eviction appfication preferred by the respondent is dismissed as withdrawn, the iastant petition filed on same cause of action is not maintainable. 9. Per contra, Shri Kishore Bhaduri, learaed counsel appearmg for the respondent would submit that tfae respondent and his brofher at present are living in the accommodation vacated by Nikhil Bajierjee, which is not sufficient for their residence; learned RCA has passed the order of eviction which is based on appreciation of evidence; the applicant utterly failed to rebut the presumption in favour of the respondent as per Section 23-D of the Act. He would fiirther contend that the resppndent is npt debarred in filing the civil suit and obtairitng a decree on the ground ofher than bonafide need mider Section 12(1) of the Act. It was furtfaer contended that as fhe earlier eviction petition was withdrawn by the respondent as the same was filed before respondent's retu'ement, the same was wifhdrawn with Uberty to file afresh, therefore, fhe instant petition filed after respondent's retirement is perfectiy in order and maintainable. In view of fhe above, eviction order being legally sustainable, deseryes to be upheld. 10. I have heard leamed counsel for the parties. Order impugned and- the record ofthe case is perused. 11. Let us deal with the legal question raised by Shri Tamaskar. Section 12(1) of the Act contains different grounds, on w^ch the landlord could file a suit for eviction against the tenants. Section 12(l)(e) and (f) of the Act contained sroiinds of bonafide reoiiirement of fhe landlord <" K gajj^ !.;S as mentioned fherein. By way ofamendment, Chapter III-A was inserted which provided procedure wifh regard to eviction of tenant on groiiads of bonallde requirement. Under this Chapter, a landlord within the meaning of Section 23-J of the Act as incorporated in the Act vide Amendment Act 7 of 1985 can submit an application for eviction of tenant on fhe ground of bonafide requirement as has been dealt with under Section 23-A of fhe Act but sueh landlord cannot submit an application to the RCA for eviction of tenant on the 0-ound ofher fhan bonafide requirement. Thus in respect to the other grounds not covered uiider Section 23-A of the Act, suit for eviction could well be filed in fhe competent civil court. There is no bar under the provisions of fhe Act to the landlord filing a suit for eviction on grounds other fhan bonaiide requlrement in the civil court and on the grouiid of bonafide requirement before the RCA. The . aforesaid proiposition of law would be ftirther clear by a bare reading of the provision eontained in Section 23-H of the Act whieh reads as under:- sf23-H. Deposit of rcnt pending for euiction or Jbr regrfsion.,- TTie provtsions of section 13 shcdl apply smutatis mutwidis" in respect of an - application for. recovery of possession qf < accommodation . under seotion 23-A and in respect of proceeding for revision under Section 23-E againstflnal order by the Rent Controllmg Authority under section 23-C or under section 23-D as they apply to a suit or proceeding instititted on any of the grounds referred to in section 12: Provided that no suit or proceeding for evictwn of the tenantis'pending before any court at any ofits stages in relation to the same accommodation.a 12. A reading of Section 23-H of the Act makes it clear fhat the provisionsNof Section 13 offhe Act were applied mufa^is mutandis in respect of an applicatiou for recovery of Dossession of aGConiiiiodation undcr Scction 23-A as also to » the proceedings for revision under Section 23-E, under Section 23-C or under Section 23-D. The proviso, as aforesaid, to Section 23-H, is sigmficant in fhe sense fhat this section 23-H would be attracted only when "no suit or proceeding for eviction of fhe tenant is pending before any Cotirt at ariy of its stages in relation to fhe same accommodation" This makes it further clear that where a suit or proceeding for eviction on grounds other fhan bonaG.de requireinent is pendmg before any Court ie. the Civil Court, at any of its stages in relation.to the same accommodation, Section 23-H would not be applicable, fhat is to say that fhe tenant wbuld not be required to make deposits etc. as required by Section 13 ofthe Act, before the RCA. As a matter offact, the reading ofthis proviso in itself makes it clear that framers of law had contemplated twro separate proceedings for eviction one before the Reut Controlliag Authority aad the other before fhe Civil Court. The aforesaid view has been upheld by a Full Bench of M.P. High Court in case of Paraschand -v-. Hemaiit Kumar reported in 1987 MPLJ 137, to which I am in respectful agreeiuent. 13. In the instant case, a decree has been passed in favour of the respondent by fhe Civil Court under fhe provisions of the Act contained in Section 12(l)(m)and 12(l)(o) oftheAct. The appeal is pending against the said judgment and decree in which the appellate Court had stayed effect and operation of fhe judgment and decree. Therefore, eviction proceeding under Section 12(l)(m) and 12(lj(o), pending consideration before the Court is not barred in view of the aforesaid discussion and, fhe legal question raised by the applicant that fhe order passed by the RCA is in conflict wifh the stay order passed by fhe appellate court is devoid ofmerit. 14. So far as fhe question ofburden to prove bonafide need as envisaged under Section 23-A of fhe Act is concerned, a rebuttable presumption is raised by sub-section 3 of Section 23-D of tlib Act in the landlord's favour of his bonafide requirement which he has set up in fhe application. The i—.....-..-.„ 1 <.- proceedings before fhe RCA is of summary in nature, who shall as far as possible, proceed with the hearing pf the application from day to day. The departure ofthe legislati-ire from the general nile of burden of proof in sub-clause (3) of Section 23-D of the Act is deliberate as the law.Iias, by adding a new Chapter III-A created a special provislon fbr the benefit of a landlord in terms of Section 23-J ofthe Act. In proceedings under Section 23-A of the Act, the burden of rebuttiag presumption fhat the requireinent set up by the landlord is bonafide, therefore, is heavily on the tenant. 15. By way of amendment, the respondent had already pleaded insufficiency of fhe accommodation vacated by the tenant Nikhil Banerjee. As per him, the respondent and his brofher have already started living in fhe said accommodation but the same is not sufficient for their residence. Admittedly fhe respondent and his brother Nishit Kant Choudhary are jotnt owner ofthe suit accominodation. Brotheris also included in the defmition of member of family under Section 2-e ofthe Act The applicant in his statement before the RCA has admitted that the respondent had retu-ed from service of Central Government and his brother Nitish Kant Choudhary had retired from service of Bhilai Steel Plant; after retirement, the respondent filed eviction petition against fhe applicant as well as against other tenant Nikhil Banerjee.In the house vacated by Nildul Baneijee, both. fhe brofhers are living. It was further stated that fhe applicant did not know whether or not except the house vacated hy Nikhil Banerjee and the suit house, any other residential house is available to fhe respondent in fhe city of Durg and he also does not know whether or not, fhe respondent is in need of suit house for his and his brother's residence. In view offhe aforesaid evidence of fhe applicant, it cannot be said fhat the applicant has succeeded in rebuttmg the presumption regarding bonafide need of fhe landtoEd with regard to the suit premises in terms of sub-section (3) of Section 23-1^ ofthe Act. Learned RCA has rightiy held tfaat the respondent along wifh his brofher are living in the house vacated bv tenant Nikhil Baneriee uncomfortablV. The tenant .L.: . ;- should not expect from fhe landlord to live uncomfortably. The respondent aad fais brother are entitled to live in their own house looking to their status. Leamed RCA has discussed and appreciated the subsequent events took place during pendency of eviction petition and recorded a finding regarding bonafide requirement of fhe landlord which stands to the reason- The applicant utterly failed to dischai^e his burden in terms of Section 23-D (3)of fhe Act. It is settled law fhat once it is held that the landlord is in bonafide need of the suit accommodation, fhen the landlord'is the best judge of his requirement and has complete ft-eedom in the matter. In view of fhe above, second ground raised by Shi'i Tamaskar is also sans substance. 16. So far as fhird question is concemed, it also has no merit. Earlier fhe eviction application was filed by the respondent before his or his brofher's retirement. Learned RCA has permitted him to witfadraw the said petition with Uberty to ffle afresh vide its order dated 28-1-2004 (Case No. 15/A-90/2002-2003). The instant petition has been ffled after retirement which cannot be said to be barred under any law. 17. In view of the above, I do not flnd any iUegaIily / infinnity in fhe order impugned passed by fhe RCA warranting interference of this Court in terms of Section 23- E of fhe Act in exercise of its revisional jurisdiction under Section 23-E ofthe Act 18. In the result, this revision being devoid of any merit,is liable to be and is hereby dismissed. However, in the facts and circumstances offhe case, two months time from today is granted to the tenant to vacate the suit premises. Sd/- N. K. Agarwal Judge ?!