.-:>^^. -•:^^.;]-^./..^" ^>y \^"'" IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR C.R. No. f^- of20 Applicaiit / Petitioner / Dr. Satish Kumar Jain, Son of Late Shri Dipchand Jam, Resident of Block No. 20/59, Lodhi Colony, New Delhi 110003 VERSUS Non-ApDlicant: Gulab Provision Stores -Respondent "' Partnership Firm, through partner Khushalchand Mutha, Son of Late Shri Gulabchand Mutha, Malviya Road, Raipur (C.G.) REVISION UNDER SECTION 23rB)OF ACCOMMODATION CONTROL ACT 1961 HIGH COURT OF CHHATTISGARH AT BILASPUR Civil Revision No. 12 of 2007 'v^ APPLICANT Dr. Satish Kumar Jain. Versus NON-APPLICANT Gulab Provision Stores ORDER Postfor '.P-10-2011 Sd/- N. K. Agarwal Judge '. ^ ^'% -••"y-^ 1 .0 HIGILCOURT QF CHHATTISGARH ATBILASPUR Civil Revision No. 12 of 2007 APPLICANT Petitioner NON-APPLICANT Resoondent" Dr. Satish Kumar Jain. Versus Gulab Provision Stores. REVISION UNDER SECTION 23-A QF THE ACCOMMODATION CONTROL ACT, 1961 S.B. : HON'BLE SHRrN.K. AGARWAL, J PRESENT:- Shri Pramod Kumar Verma, Senior Advocate with Shri Sumit Verma for the petitioner. Shri B.P.Sharma for the respondent. ORDER (Deliveredon \Q -10-2011) Feeling aggrieved by the order dated 30.05.2006 passed by the Rent Controlling Authority, Durg (for short 'the R.C.A.') in case No. 10A-90/2004-05 whereby and whereunder eviction petition filed by the petitioner is dismissed, the instant revision under Section 23-A of the M.P. 85 C.G. Accommodation Control Act, 1961 (for short 'the Act') has been preferred. 2. Brief facts giving rise to this revision are as under: (i) Petition^r has filed an application under Section 23-A of the Act on the grounds: petitioner retired as Professor in Medicine and Gastroenterology Department from -f^^' h'" '/ Moulana Azad Medical College run by the Ministry of Health and Family Welfare, Central Government, New Delhi on 01.12.2001 and now suit premises owned by hira, let out to the respondent/non-applicant for non- residential purpose, is required bona fide by him for the purpose of starting his practice as Doctor^and for this he has no other reasonably suitable non-residential accoinmodation of his own in his occupation in the city of Raipur. (ii) The non-applicant/tenant sought permission under Section 23-C of the Act on the grounds: rent of suit shop was being regularly increased and was increased to Rs.3600/- per month in the month of July, 2002 i.e. after petitioner's retirement; in fact, petitioner wanted to increase rent by Rs.5000/-, due to non-applicant's denial the rent was fixed as Rs.3600/- per month; petitioner is doing his practice as Doctor in Delhi after retirement, having his own residential house in Delhi; his children are prosecuting their studies in Delhi; to enhance rent or to sell the suit shop after seeking its vacant possession, the eviction petition has been filed; petitioner is not in bona fide need of the suit shop; he is having other alternative suitable non-residential /?'^'\ S^r^\i >i.T^ accoramodation of his own in his occupation in the city of Raipur in the Digamber Jain Mandir gali. (iii) The R.C.A. granted leave to contest the application for eviction. Non-applicant filed his written statement. The R.C.A. framed issues. Parties led evidence. The R.C.A., on appreciation of the pleadings of the parties and evidence led, rejected the application for eviction of non- applicant filed by the petitioner. Hence, this revision. 3. Shri Pramod Kumar Verma, learned Senior Advocate appearing for the petitioner assailing the impugned order on the following grounds: i. the fact that petitioner is a retired Central Government employee, a special category of landlord, as defined under Section 23-J of the Act, has not been specifically denied by the non-applicant, and therefore, there was no need for the petitioner to prove above fact.and the R.C.A. has wrongly held the petitioner failed to prove, he is a special category of landlord under Section 23-J of the Act; ii. accepting the enhanced rent ipso facto will not mean that for all time to come the landlord shall not have bona fide need; iii. tenanted suit shop is situated on the main road and is more suitable for starting petitioner's practice as Doctor .....,-.^-»>N.'^ /^w^ ((r^ 4 as compared to godown situated in the Digamber Jain Mandir gali; iv. the requirement of landlord cannot be negatived on the ground of availability of godown situated in the Digamber Jain Mandir gali; v. the R.C.A. has erred in law in drawing adverse inference against the petitioner for not denying the averments made in written statement filed by the non-applicant; vi. the finding of the R.C.A. that petitioner's need is not bona fide is perverse and the eviction application filed by the petitioner deserves to be allowed. 4. Per contra, Shri B.P.Sharma, learned counsel appearing for the non-applicant would submit: petitioner failed to establish the fact that he is a retired Central Government employee inasmuch as the document filed by him was not even exhibited and placed reliance upon the dicta of Apex Court in the cases of Indrasen Jain v. Rameshwardas, (2005) 9 SCC 225, Amar Nath Agarwalla v. Dhillon Transport Agency, (2007) 4 SCC 306, Dharmarajan and others v. Valliammal, (2008) 2 SCC 741 and Life Insurance Corporation of India and another v. Rampal Singh Bisen, (2010) 4 SCC 491. It was further contended that the R.C.A., considering increase in the rate of rent of the suit shop by the petitioner after his retirement, availability of ^. alternative accommodation for the purpose of his practice as Doctor, by drawing presumption the petitioner in order to let the suit shop on enhanced rent and/or to sell the suit shop after seeking its vacant possession, the eviction application has been filed and by holding the need of the petitioner is not bona fide, has rightly dismissed the eviction ap^lication and this Court niay not interfere in the above order in exercise of its revision jurisdiction under Section 23-E ofthe Act. 5. I have heard learned counsel for the parties, perused the record ofthe R.C.A. including order impugned. 6. The questions, therefore, arise for determination of this Court "whether the finding of the R.C.A. that the petitioner does not come in the category of the special landlord, as envisaged under Section 23-J of the Act and is not in bona fide need of the suit shop,suffers from jurisdictional illegality warranting interference of thisCourt. 7. Sections 23-A, 23-C, 23-D, 23-E and 23-J(i) ofthe Act read as under: "Section 23-A. Special provision for eviction of tenant on ground of bonafide requirevnent.' Notwithstanding anything contained in any other law for the time being in force or contract to the contrary, a landlord may submit an application, signed and verified in U manner provided in rules 14 and 15 ofOrder VI of the First Schedule to the Code of Civil Procedure, 1 908 (V of 1908) as if it were a plaint to the Rent Controlling Authority on one or more of the following groundsfor an order directing the tenant to put the landlord in possession ofthe accommodation, namely:- (a) that the accommodation let for residential purposes is required <cbona fide)) by the landlord for occupation as residencefor himselforfor any member ofhisfamily, orfor any personfor whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concemed. Explanation. For the purposes of this clause, "accommodation letfor residential purposes" includes- (i) any accommodation which having been letfor use as a residence is without the express consent of the landlord, used wholly or partly for any non- residential purpose; (ii) any accommodation which has not been let under an express provision of contract for non- residential purpose; (b) that the accommodation lef for non-residential purposes is required c(bona fide" by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters, ifhe is the owner thereofor for any person for whose beneftt the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concemed: Provided that where a person who is a landlord has acquired any accommodation or any interest therein by transfer, no application for eviction oftenant of such accommodation shall be maintainable at the instance of such person unless a period of one year has elapsedfrom the date ofsuch acquisition, Section 23-C. Tenant not entitled to contest except under certain circumstances.'(l) The tenant on whom the summons is served in the form specified in the Second Schedule shall not contest the prayer for eviction from the accommodation unless he files within fifteen daysfrom the date ofservice ofthe summons, an application supported by an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Rent Controlling Authority as hereinafter provided, and in default of his appearance in pursuance of the summons or in default of his obtaining such leave, or if such leave is refused, the ^tatement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant The Rent Controlling Authority shall in such a /^ 1""- •^\ ^>\ T"^s•Jl J/Ji case pass an order of eviction of the tenant from the accommodation: Provided that the Rent Controlling authority may, for sufficient cause shown by the tenant, excuse the delay of the tenant in entering appearance or in applying for leave to defend the application for eviction and where "ex-parte" order has been passed, may set it aszde. (2) The Rent Controlling Authority shall, within one month of the date of receipt of application, give to the tenant, ifnecessary, leave to contest the application, if the application supported by an affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the accommodation on the ground specified in section 23-A. Section 23-D. Procedure to be followed by Rent Controlling Authority or grant of leave to tenant to contest.-(l) Where leave is granted to the tenant to contest the application, the Rent Controlling Authority shall commence the hearing of the application as early as practicable and decide the same, as far as may be, within svc months ofthe order of granting of leave to the tenant to contest application. (2) The Rent Controlling Authority shall, while holding an enquiry in a proceeding to which this Chapter applies, follow as far as practicable, the practice and procedure ofa Court of Small Causes including the recording of evidence under the Provincial Small Cause Courts Act, 1887 (K OF 1887). The Rent Controlling Authority shall as far as possible, proceed with the hearing of the application from day to day. (3) In respect of an application by a landlord, it shall be presumed, unless the contrary is proved, the requirement by the landlord with reference to clause (a) or clause (b), as the case may be ofsection 23-A is bona fide. Section 23-E. Revision by High Court.—(1) Notwithstanding anything contained in section 31 of section 32, no appeal shallliefrom any orderpassed by the Rent Controlling Authority under this Chapter (2) The High Court may, at any time <csuo motuv or on the application of any person aggrieved, for the purpose of ^atisfying itself as to the legality, propriety or correctness of any order passed by or as to the regularity of the proceedings of the Rent Controllmg ^ ^;^"v '{^^!t \'--y' I.' Authority, call for and examine the record ofthe case pending before or disposed of by such Authority and may pass such order in revision in reference thereto as it things ftt and save as otherwise provided by this section in disposal of any revision under this section, the High Court shall, as far as may be, exercise the same powers and follow the same procedure as it does for disposal ofa revision under section 115 ofthe Code of Civil Procedure, 1908 (V of 1908) as if any such proceeding ofthe Rent Controlling Authority is of a Court subordinate to such High Court: Provided that no powers of revision at the instance of person aggrieved shall be exercised unless an application is presented within ninety days of the date ofthe order sought to be revised. Section 23-J. Deflnition of landlord for the purposes of Chapter III-A. For the purpose of this Chapter 'landlord' means a landlordwho is - (i) a retired servant of any Govemment including a retired member of Defence Services: orv 8. In order to bring himself within the pundew of special category of landlord, as envisaged under Section 23-J(i) of the Act, the petitioner was required to prove the same by leading cogent and clinching evidence in this regard. 9. It is also equally true that the documents filed by the petitioner which were not exhibited at the trial cannot be looked into since they were not put in evidence and the non- applicant had no opportunity of replying to those documents, as held by the Supreme Court in the case of Amarnath Agarwalla (supra) and mere admissi'on of document in evidence does not amount to its proof, as held by the Supreme Court in the case of Life Insurance Corporation of India and another (supra). !-"^ i J. 10. The question whether or not the petitioner comes within the purview of special category of landlord, as envisaged under Section 23-J (i) of the Act has to be proved by the petitioner himself and it is not the defence of the non- applicant to be proved by him. 11. In the instant case, the non-applicant in his application for grant of leave to defend the eviction application filed under Section 23-C of the Act, has not raised a ground that the petitioner is not a retired Government employee. A careful reading of written statement filed by the non-applicant would also reveal the fact of petitioner being retired Government servant has not been specifically denied by the non-applicant. No question was put to the petitioner's witness by the non- applicant suggesting the petitioner is not a retired Government eniployee. 12. As per Order 8 Rule 5 of the C.P.C., every allegation of the fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. As per Order 8, sub-rule (2) of Rule 5 of the C.P.C., where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability. ^•^^^ ' '^^"^. •^'""•^ \1\ {- 10 ]/ ^ '-^/ 13. Further, the fact that the petitioner is a retired Government employee has been categorically admitted by the non-applicant's witnesses namely Chandanmal Nata in his statement paragraph 10 and also by Vijay Kumar Mutha, examined byjthe non-applicant on his behalf in paragraph 7. It is trite law, admission is the best piece of evidence unless explained and no further proof is necessary. The non- applicant has admitted in his evidence that the petitioner is a retired Government employee with open eyes. Now he cannot be allowed to say othenvise. Indisputably, a retired Government employees comes under the special category of landlord in view of Section 23-J(i) of the Act. 14. In view of above, in my considered opinion, the finding that the applicant failed to prOve, he belongs to special category of landlord to maintain his application under Section 23-A of the Act is not sustainable in law. 15. Coming to the next question, enhancement of rent periodically shall not mean whenever the landlord seeks eviction it will lead to the conclusion that it is for the purpose of enhancement of rent. In the instant case, the petitioner retired on 01.12.2001 and eviction application has been filed in the year 2002. Raipur is his hometown, his family members are residing there. As per his evidence, his two \^ ^' •y • daughters are studying at Pune, minor son may also go for studies to some other place and he being a Doctor for his remaining life, he wants to reside and practice in his hometown and in the above circumstances, his need cannot be negatived merely the rent was enhanced 6 months prior to the filing of eviction application. 16. HonlDle the M.P.High Court in the case of Haji Abdulv. Prabhulal, 1998 M.P.A.C.J., 408 has held in paragraphs 7 and 8 as under: "7. '7. Shri Ravish Agrawal appearing on behalf of the landlord submits that the view taken by the lower appellate Court is absolutely erroneous. He submits that enhancement of rent periodically shall not mean that whenever a landlord seek eviction it will lead to the conclusion that it is for the purpose of enhancement of rent. Tenant was inducted in the suit accommodation in the year 1971 at the monthly rental of Rs.155/- and the rent was enhanced from time to timse and in the year 1981 it was enhanced to Rs.260/- per month. 5 years thereafter it was enhanced to Rs.280/- and in the year 1990 it was enhanced to Rs.300/-. It is well known that the rent of accommodation is periodically enhanced and from this one cannot infer that at a later date when the landlord seeks eviction of the tenant it is for the purpose of enhancement of rent. Lower Appellate Court is also of the view that the demand of Rs.500/- in the quit notice (Ex.P-1) by the landlord is indicative of the fact that he wanted to enhance the rent. Quit notice given by the landlord to the tenant is for vacation of the suit accommodation and what was asked for from the tenant in the notice was damage for occupation of the suit accommodation after the notice Fieriod. This, in my opinion, cannot be relied to hold the landlord sought for eviction, as the wanted to enhance the rent. 8. Lower Appellate Court, for arriving to the conclusion that the need of the landlord, is not bonafide has referred to its evidence wherein he has stated that the suit accommodation was required by him since last 10 years for the business of his son and he is making endeavour for its eviction since 8-9 years, but the tenant did not vacate the accommodation and paid enhanced rent. In such a situation according to the Court of appeal below the landlord ought to have initiated the process for eviction of the tenant in the year 1989, instead of enhancing the rent from Rs.280/- - to Rs.300/-. This, according to the lower appellate Court, clearly shows that in fact the landlord did not require the suit accommodation bonafide and his whole object was to enhance the rent. I am of the opinion, that the view taken by the lower appellate Court is erroneous. Failure on part of the landlord to institute the suit for eviction in the year 1989 and accepting the enhanced rent, ipso facto will not mean that all time to come he shall have no bonafide need. In my opinion, this consideration, which had weighed with the lower appellate Court is not relevant for determination of issue of bonafide need. Reference in this connection can be made in the case of Vithaldas and others Vs. Ramchandra and others, 1995 Suppl. (3) S.C.C. 374, wherein it has been held as follows :- 'Then again, we are unable to support of the judgment of the lower appellate Court because it says the landlord did not institute the suit before January 1969. This in our considered opinion is not relevant to the issue of bona fides. Therefore, the High Court was justified in interfering under section 100 CPC. As rightly contended by Mr. H.K.Puri, learned counsel the decision of Mattulal Vs. Radhe Lal's is factually distinguishable." 17. Further, it is also settled law, where the tenanted accommodation is situated on a main road and it is more suitable for starting the business as compared to the shop situated in the gali, the requirement of the landlord cannot be s negatived on the ground of availability of altemative :-^. "'^ J.^ 13 '-f'.../ --....^ accommodation. The need of landlord cannot be defeated for the reason that some alternative accommodation situated in the Digamber Jain Mandir gali is available. The High Court of M.P. in the case of Noor Mohammad v. Murlidhar, AIR 1985 MP 260, has held as under: "Thus, on the evidence on record it is quite clear that the tenanted accommodation is situated on a main road and it is more suitable for starting the business of the plaintiffs son Mohd. Iqbal as compared to the shops situate at Kabutarkhana. In the circumstances, the plaintiffs requirement of the tenanted accommodation for starting the business of his son Mohd. Iqbal cannot be negatived on the ground of availability of alternative accommodation in the house situated Kaburkhana." 18. I am in respectful agreement with the dicta of the High Court of M.P. in the cases referred hereinabove. 19. Initial burden has been discharged by the landlord/petitioner by pleading his case specifically in terms of Section 23-A of the Act and also by examining himself on that. A presumption, therefore, arises in favour of the petitioner. Section 23-D (3) of the Act and the same has not been rebutted and the finding recorded by the R.C.A. appears fo be perverse. 20. In view of above, the grounds warranting interference of this Court iri exercise of its revisional jurisdiction under Section 23-E of the Act are made out. The revision petition is allowed. It is held that the petitioner comes under special Y. ^'^. 14 .^..y category of landlord as envisaged under Section 23-J (i) of the Act and he is in bona fide need of the suit premises for starting his practice as Doctor. Non-applicant is directed to deliver the vacant possession of the suit premises to the petitioner within a period of 2 months from today. 21. No order as to costs. Sd/- N. K. Agarwal Judge