HIGH COURT OF CHHATTISGARH AT BILASPU CIVIL REVISION No. 38/2008 APPLICANT Ashok Kumar Tiwari RBSPONDENT Versus Bhagwat Prasad Vishwakarma O RD E R Postfor3,j -8-2009 Sd/- N. K. Agarwal judge ',.,! •I I HIGH COURT QF CHHATTISGARH AT BILASPUR CIVIL REVISIONNo. 38/2008 APPUCANT DEFENDENT RESPQNDENT PLAINTIFF Ashok Kumar Tiwari, aged about 39 years, S/o Shri Govind Prasad Tiwari, Unique Electronics, Mannu Chowk, Tikrapara, Bilaspur (CG) Versus Bhagwat Prasad Vishwakarma, aged about 61 years, S/o Shri Shankar Prasad Vishwakarma, R/o Ramdas Nagar, Tikrapara, Bilaspur (Single Bench: Hon'ble Mr. N.K. Agarwal, J.l Present : Shri Gautam Khetrapal, Advocate, for the applicant. Shri A.P. Dubey with Shri Parag Kotecha, Advocates for the respondent. ORDER (3| -8-2009) 1. By this revision under Section 23(E) of the C.G. Accommodation Control Act (briefly, the Act), the tenant/ applicant challenged the legality and correctness of the order dated 22-2-2008 passed by learned Rent Controlling Authority, Bilaspur on the application filed by the non- applicant/ landlord. 2. Indisputably the applicant is tenant in a non-residential accommodation/shop situated at Tikrapara, Bilaspur. The respondent is his landlord. The landlord served upon the tenant notice dated 20-8-99 through his counsel terminating his tenancy. The landlord in his application averred that he requires the suit shop bona fide for his own business and for the business of his wife, children and members of the family for earning their livelihood and for that, he has no other reasonably suitable accommodation available in the city of Bilaspur. Since the tenant despite notice did not vacate the suit premises, hence application under Section 23-A of the Act for eviction of tenant was filed. The tenant denied the averments as above. He denied that the suit shop wds bona fide required by the landlord for himself and for his sons, wife and family members. According to him, out of 3 sons of the landlord, one is mentally retarded, second.is working in the post of fitter in Prakash Sponge Iron and 3rd is in government service, wife of the applicant is an old lady, she has no experience of business. It was also averred that the landlord had 3 other equally big shops adjoining the suit shop, out of which one shop was vacated by tenant Chandrakant Mishra in the month of December, 98. That shop remained vacant for 8-9 months and thereafter it was let out to one Vishwanath son of K.R. Ayyar in the month of September, 99. It was further averred that an eviction suit bearing Civil Suit No. 49-A/96 was filed by the landlord against the tenant of 4th shop Rajendra Kumar Meshram son of Dasrath Meshram. Oti 21-8-96 the 2nd Civil Judge Class 2 passed decree of eviction and the landlord obtained its possession at the time of Diwali festival in the year 1996. The shop remained vacant for 5 months, thereafter on 9th June, 97, the same was re-let on an enhanced rent to one A.B. Basurai. It was further averred that a suit for eviction bearing Civil Suit No. 58-A/96 was also filed against the applicant/tenant by the landlord showing need of his son Harbans Kumar. That suit was dismissed on the ground of bona fide need by the trial Court on 31st March, 97, but was decreed on other ground and thereafter the suit was dismissed in toto in appeal No. 21-A/99 filed by the tenant before the 6th Additional District Judge, Bilaspur vide order dated 20-7-99. According to the tenant, the landlord filed / h :1".\L li^ ^i f!:' •r, li1!', 6. the application for eviction on false ground and prayed fhat the same be dismissed. The application filed under Section 13(6) of the Act was rejected on 1-6-2001. The evidence of landlord was recorded on 12-12-2005. Vide order dated 22-6-2007, the defence oftenant was struck offunder Section 13(6) ofthe Act. On 3-11-2007, the tenant adduced his evidence and thereafter learned Rent Controlling Authority by the impugned order held that the suit accommodation is required bona fide by the landlord and accordingly allowed his application directing the tenant to vacate the suit shop. Shri Gautam Khetrapal, learned counsel appearing for the applicant would contend that learned trial Court has conimitted grave error of law in passing the decree against the applicant on the ground of bona fide requirement of the suit premises despite the fact that the landlord is in vacant possession of shop situated in the same locality and despite the fact that on the basis of admitted facts and the evidence adduced, it is clear that the requirement of the landlord is not bona fide. He would further contend that the order of striking out of the defence of the applicant passed by the Rent Controlling Authority is without jurisdiction and illegal. Per contra, Shri A.P. Dubey, learned counsel appearing for the non-applicant/ landlord would submit that the non- applicant is 70 years old person requires the suit shop bona fide for starting business for himself and his sons, the applicant adopted a dilatory tactics and the matter could be heard finally by the Rent Controlling Authority after a period of 9 years. The Rent Controlling Authority considered each and every aspect of the matter and after considering the material and evidence on record, has passed the order which needs no interference in the 7. revisional jurisdiction of this Court and the revision is liable to be dismissed. I have heard learned counsel for the parties and perused the impugned order and the record. 8. Following issues are involved iri this revision :- i. Whether the eviction order passed by learned Rent Controlling Authority requires interference of this Court in exefcise of revisional jurisdiction conferred upon it under Section 23-E of the Act ? ii. Whether the order passed under Section 13(6) of the Act striking out the defence of the tenant can be questioned in a revision filed against eviction order ? 9. It may be noted at the outset that the landlord's pleading regarding requirement are recited in para 4 and 4-A of the application filed before the Rent Controlling Authority. The said paras read as under:- 4. 31I^4> TT£?T ^?T "m^FT "^ ST'YFf^T ^II^4?rl^ ch4^1^1 m I ^T? f^-TT^ 31.07.97 ^t 58 ^ cft 3TT3 T^of "q^ ^ ^T^T 3Tq^ ^^T ^ ^c||P|^ ^3TT t 1 311^4? cRfTTpf ^ ^t^ ^pf ^T c^ ^T f | 311^ch ^^T Pl^ ^ ^ cTTc[ ^TqF-TT ^f ^PT^ ^^ff ^t cq^-Re^T -e^ ^ f^H? oL|c|^|^ ^^TT TTTgm t, f^RT^ I^H? ^R ^^T-T ^ ^TcfraT 3lt^ ^t^ ^^xT ^^T ^ ^n^^T ^^FT entcT^ ^ ^TRT cZT^rpT ^^ ^ f^ ^' f^ f^RP^ ^T? 3HPTT cq-q^TpT ^T^ ^T^ I ^T TT^T? 311^4? ^ ^K ^^T'T ^t 3rT^ ^raf ^ f^T? ^ ^rHFft iT^r T^T ^TccTf ^ HSH qRcjl^ ^ ^c^^T c^ oL|cj^|^ ^ f^ ^T^'*:n^TT ^cf) 31Ic|^^<hdl t I 3RT: 31-II^cb -^ ^K ^^TT ^T f^T 3rrfSTqTorT OT^^F ^t Rd 1^11 1<jTPTT ^l^lRd ^" OT^^T^ t I 4 -3T ^fRlclK TT^ ^t ^f^T-4"3T" cft ^' ^'^R t Tf^ ^"^K f f^ Trm^ ^ ^f^Rr sr^an ^' snt^? ^ f^^i^^iN: ^.^t. •^?prr ^T f^r^ ^ f^TT^ ^t ^cfTR ^ff ^i^T f^?^|^cil^ ^ f^TT^ 9 f^RT^r 2002 ^t ^Tcft ^? ^t 11 ^ ^RT^ ^Tcft ^^ ^ ^K ^^ft ^^T-T ^t 311^4? -^ ^raT f^^HT •^h? ^TT^ <^t ^rf^ f^T^ ^' ^t 11 f^RT^' ^T? f^^l-11 ^^M ^? ^?T 11 ^T^rf^ ^4 ;<IT? t, f^ ^rTT^^^ t<^ ^S -^[^ ^rq^^T ^T t ^ ^(Tc^ ^f^TT sf^fK -^T t cprrf^, gnt^? wt 3141^(h ^t ^ ^^PT ^T^ CT^ETT sra^rr 10. 1.1. ^ ^RUT € -^RT^ f^RRT ^IPT ^ ^TFT^ ^ ^ ^RUT ^nt^^ c|ft c^c|^|^I t^ ^f^T ^ T14fT<T t I A perusal of para 4 above would indicate that the averments as above are vague and do not properly spell out the requirement in terms of Section 23~A(b) of the Act. As per Section 23-A(b) of the Act, the accommodation let for non-residential purpose if required bona fide by the landlord for the purpose ,of continuing or starting his biisiness or that of any of his major sons or unmarried daughters whereas as per the pleadings of the landlord, he requires the premises for himself and for all of his sons, wife and family members. Perusal of para 4-A of the application which was added in the application by way of amendment dated 11-5-2005 would indicate that the landlord obtained vacant possession of one shop adjoining to the suit shop but after a lapse of more than a period of 5 years, while admitting obtaining of vacant possession of another shop it was pleaded that due to his old age the same is not suitable and sufficient for his business. Now coming to the evidence of the landlord. It was categorically admitted by him in the examination that during pendency of this case, he obtained vacant possessions of shops and he let out the same on higher rent. It was also admitted that his one son is in government job, one is doing job in private firm and one son is mentally retarded who left the house after institution of the present eviction petition. He also admitted the fact that out of three other shops, area of 2 shops is similar to the suit shop. In view of the above admissions, it is clear that despite obtaining vacant possession of the shops adjoining to the suit shop which are similar to the suit shop, he did not start business but let them out on higher rent. It is also 12. f^ clear that even in the evidence adduced, it was not made clear by the landlord that whether he requires the suit shop for his own need or for the need of his major sons. On the other hand, in the affidavit filed under order 18 Rule 4 of C.P.C. it was again stated by the landlord that he requires the suit shop for himself, and for all his family members and that too, without indicating the nature of business. In this way of the matter, even ignoring the evidence adduced by the tenant, it would appear that the pleading regarding alleged requirement ofthe suit shop are not in conformity with the provisions contained in Section 23-A(b) of the Act and are vague. Even examining only the evidence adduced by the landlord/it cannot be said that the landlord has discharged his initial burden to prove his requirement. On the contrary, his admissions demolish the factum of bona fide need. Shri A.P. Dubey, learned counsel appearing for the respondent would submit that once it is held that the landlord is required the suit shop bona fide then he cannot be directed to chose other preniises as for his need, the landlord is the best judge and as per him, the suit shop is more suitable to the respondent than the others due to his old age and therefore,the other factors are irrelevant and learned Rent Controlling Authority has rightly passed the impugned order. Reliance has been placed upon the judgments in the matters of Prativa Devi (Smt) -v- T.V. Krishnan reported in (1996) 5 SCC 353, Akhileshwar Kumar and others -v- Mustaqim and others reported in (2003)1 SCC 462, Sait Nagjee Purushotham & Co. Ltd. - v- Vimalabai Prabhulal and others reported in (2005) 8 SCC 252 and various other judgments. He would further submit that scope of revision is very limited and normally the evidence should not be reappreciated and reappraised. For this, he placed reliance upon the judgment in the F matter of Chaman Prakash Puri -v- Ishwar Dass Rajput and another reported in 1995 Supp. (4) SCC 445. As far as question of bona fide need is concerned, the date of application is material and it cannot be eclipsed by subsequent development. 13. It is true that once the bona fide requirement of the landlord is proved, then the landlord is the best judge of his requirement and it is, unnecessary for the court to m.ake an endevour to show the landlord how he should adjust himself. If a tenanted non-residential accommodation is situated at main road and more suitable for starting business as compared to alternative accommodation situated at side road, the tenanted accommodation cannot be refused to landlord on the ground of availability of alternative accommodation, but it is also equally true that the court is expected to discuss and appreciate the evidence available on record and to apply objective test for recording finding. The Full Bench of High Court of Madhya Pradesh in case of Kunjulal Yadu -v- Parasram Sharma reported in 2000(11)M.P.A.C.J. 180, while rejecting the contention that if a retired government servant is allowed to take resort to thespecial provision in respect of the premises acquired after his retirement, then he may indulge in business and abuse the process of law, observed that a landlord who has been given the privilege to invoke the said provision, has to satisfy the bona fide requirement. In absence of bona fide need, he would not be successful in evicting a tenant. It was further obser^ed that he has to prove bona fide need very strictly and need has to be quite real and sanguine. 14. The Single Bench of this High Court in case of Uttamchand Jain and others -v- Smf. Mohnibai and others reported in 2007(2) CGLJ 131 has held that in a '•, ' 15. case, the fact of nature of business for which bona fide requirement was shown to exist, not having been pleaded, the evidence of landlord could not be relied on. Now by applying the aforesaid proposition in the facts situation of the present case, it is noticed that the landlord even after getting vacant possession of the premises in pursuance of eviction decree passed in his favour for his bona fide need for other adjoining shop, he did not occupy it and instead, he re-let it, which clearly demolishes the factum of bona fide requirement of the landlord with regard to the suit accommodation. The factum of unsuitability of adjoining shop was not pleaded earlier at the time of preferring application. More over, the landlord evicted Rajendra Kumar Meshram from the said shop on the ground of need and inducted A.B. Basurai, on his vacating, re-let to other tenant, therefore, averment of unsuitability cannot be said to be bona fide. The requirement pleaded was as vague as it could be and, therefore, the decisions relied upon by the respondents are of no help to him in the facts situation of the instant case. It is true that normally the evidence should not be reappreciated or reappraised in exercise of revisional jurisdiction. In Shiv Sarup Gupta -v- Dr. Mahesh Chand Gupta reported in AIR 1999 SC 2507, it was laid down that the Court would not normally enter into appreciation or reappreciation of evidence, merely because it is inclined to take a different view of the facts, However, this Court is obliged to test the order of the Rent Controller on the touchstone of 'whether it is according to law', and for that limited purpose it may enter into reappraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person could reach to such conclusion on the material available. In the 1» 16. instant case, as noticed earlier, it is found that the learned Rent Controlling Authority, in total disregard to the pleading and material as placed on record, has chosen to record a finding that the landlord requires the suit accommodation for his business. Such a finding obviously cannot be sustained As far as question of striking out of the defence of the tenant is concerned, it is, noticed that the matter was pending since 1999 and which culminated in the eviction order on 22-2-2008 and due to the reason that the tenant had not deposited 2 or 3 months' rent in time, although subsequently he has deposited the rent of succeeding months in advance, the defence was struck out by the Rent Controlling Authority that too, at the fag end of the trial on 22-6-2007. It is trite law that while dealing with an appeal arising out of ajudgment and decree passed by the trial court, the appellate court is empowered to examine correctness and validity of the interlocutory orders passed during trial under Section 105 of C.P.C. In the instant case, the said order was also challenged by the tenant. By applying same analogy which is applicable in appeal, in the opinion of this Court, the correctness and validity of the said order can also be examined by this Court in exercise of revisional powers conferred upon it under Section 23-E of the Act which are wider than under Section 115 of C.P.C. Despite striking out the defence, learned Rent Controlling Authority permitted the tenant to adduce his own evidence and thereafter order has been passed without taking into consideration the effect of order of striking out of the defence and in this view of the matter, the order of striking out the defence passed by learned Rent Controlling Authority could not be sustained. 10 17. The effect of striking out of the defence was examined by the Supreme Court in the case of Modula India -v- Kamakshya Singh Deo reported in AIR 1989 SC 1 62 and the Supreme Court observed in para 12 as under:- ((12..... True full effect should be given to the word that defence against ejectment is struck off. But does this really deprive the defendant tenant of further participation in the case in any manner ? While it is true that, in a broad sense, the right of defence takes in, within its canvass, all aspects including the demolition of the plaintiffs case by the cross-examination of his witnesses, it would be equally correct to say that the cross-examination of the plaintiffs witnesses really constitutes a finishing touch which completes the plaintiffs case. It is a well established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross-examination. The mere statement of the plaintiff's witnesses cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintiff's witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiff's evidence cannot be acted upon. Looked atfrom this point ofview the view can be taken that, though the defence of the tenant has been struck out, there is nothing in law to preclude himfrom demonstrating to the Court that the plaintiffs witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient tofulfill the terms ofthe statute." 18. By applying the dictum of the Supreme Court in the above referred case, in the facts of the present case, it would be clear that even ignoring the evidence adduced by the tenant and by taking the averment in application and evidence adduced by landlord, it is clear that the plaintiff could not prove the fact that he requires the suit shop bona fide for his; his sons? business. 19. In view of the above, in the considered opinion of this Court, eviction order passed by learned Rent Controlling Authority deserves to be set aside. -——--- ^^^^^^B^) 20. In the result, this revision is allowed. The impugned order is set aside. The application for eviction under Section 23- A of the Act filed by the landlord stands dismissed. 21. No order as to costs. Sd/- N. K. Agarwal Judge