ORDER
S.B. Sakrikar, J.
1. Unsuccessful applicant, a landlord has directed this Revision under Section 23-E of the M.P. Accommodation Control Act 1961 (for short 'the Act') against the order dated 15-11-96 passed by the Rent Controlling Authority, Indore in Case No. A-90/7/52/86-87 thereby rejecting the application filed by the applicant against the respondent for his eviction from the suit accommodation on the ground of requirement of the said accommodation for establishing the office of his major son, an Advocate.
2. This is one more lis between landlord and tenant in which the landlord is contesting his claim for eviction against the tenant since 1985. Period of this enormity is prone to cause frustration in the minds of both the sides. After all, how long legal battle should continue Legal justice should not be allowed to become a teasing illusion or promise of unreality. When litigation goes on and on, it is time that litigants learnt three percepts; 'To live honorably, not to injure another, to render each his due'. The object of law is to render each his due and to establish harmony, not antimony, with justice. Extracted from 1997 (2) JLJ-193 Badarilal v. Chandraprakash and Ors.
3. Briefly stated the facts of the case are that the applicant is the owner of a double storied house situated at 1/2, Parsi Mohalla, Indore. The applicant is a retired servant of M.P. State Road Transport Corporation. On the ground floor of this house there are six shops and a garrage. First floor of the house is entirely residential and is used for the residence of the family members of the applicant. Out of the six shops located on the ground floor of the said house, one shop consisting of two rooms was given in possession to the opponent's father Melaram on a monthly rent of Rs. 78/- in the year 1954. The said Melaram died in the year 1976 leaving behind opponent, the elder son, three daughters, widow and a younger son as his heirs. After the death of Melaram, the suit shop is in occupation of the heirs of the deceased tenant Melaram and doing their family business through the non-applicant who is the 'Karta' of the said family.
4. The applicant filed a Civil suit in the year 1985 in the Court of IVth Civil Judge, Class-I Indore for eviction of the heirs of deceased tenant Melaram on the ground that the applicant requires the suit accommodation for starting the clinic of his major son Dr. Sudhir. On coming into force of the M.P. Accommodation Control (amendment Ordinance 1985) effective from 16-1-1985, entitling the landlord of the categories specified in Section 23-J, the applicant withdrew the aforesaid suit from the Civil Court on 22-1-1987 and filed an application under Section 23-A of the amended provisions before the Rent Controlling Authority, Indore on the ground that the suit accommodation is required bona-fide by the applicant for the purpose of running a typing shop of his younger son Randhir and for this purpose the applicant has no other reasonably suitable accommodation of his own. During the pendency of the application, the applicant's said son Randhir has become Lawyer and the application was amended with the averments that the suit accommodation is required by the applicant for the purpose of establishing the office of his son Randhir who become Advocate.
5. The opponent, on service of notice of the aforesaid application, filed an application for Leave to defend on various grounds as contemplated under Section 23-C of the Act. In the said application supported by an affidavit, the non-applicant stated that after the death of his father Melaram he is carrying on the business in the suit accommodation for and on behalf of his joint family being the eldest son of deceased tenant Melaram. On grant of Leave to defend, opponent filed the written statement raising various pleas such as that the applicant is not a landlord of the categories specified under Section 23-J of the Act. The petition for eviction against the opponent alone without joining other heirs of the deceased Melaram is not competent. That the need pleaded by the applicant is not genuine and an alternative accommodation is available with the landlord in the same house for the purpose of the alleged need of his son Randhir.
6. The learned Rent Controlling Authority, by order dated 26-12-90 dismissed the application filed by the applicant for eviction on the preliminary point that the applicant is not a landlord of the category specified in Section 23-J of the Act. The applicant filed a Revision against the said order of the Rent Controlling Authority in this Court and the Division Bench of this Court by Order dated 7-9-94 in Civil Revision No. 61/91, allowed the Revision filed by the applicant and set-aside the order of the Rent Controlling Authority, holding that the applicant-landlord is covered under the categories specified in Section 23-J of the Act. An SLP was filed against the said order of this Court by the opponent before the Apex Court and the same was dismissed on 2-12-1994 and the case was remanded back to the Rent Controlling Authority for disposal on merits, in accordance with the law.
7. On remand, the learned Rent Controlling Authority, on the basis of the evidence recorded in the case, dismissed the application filed by the applicant for eviction, by the impugned order, mainly on the two grounds that the application for eviction against the non-applicant alone is not competent and secondly on the ground that the need alleged by the applicant is not genuine as the two shops vacated by the other tenants Rameshlal Sitlani and Vishnu are available with the applicant in the same suit house. Aggrieved, the applicant has filed this Revision under Section 23-E of the Act.
8. During the pendency of the application, opponent filed two applications; I.A. No. 2094/97 and 3050/99, seeking permission to amend his written statement under Order 6 Rule 17 CPC. The arguments on the aforesaid applications have been heard alongwith the arguments on merits of the Revision.
9. Before considering the Revision on merits, the applications for amendment; I.A. No. 2094/97 and 3050/99 are taken up for consideration first. Learned counsel for respondent contended that the amendments proposed in I.A. No. 2094/97 are based on the subsequent events and are necessary for the just and fair disposal of the matter in dispute between the parties. The learned counsel contended that by the said amendment, the nature of defence as raised by the respondent will not change and would not cause any prejudice to the applicant. With regard to I.A. No. 3050/99, learned counsel contended that by the proposed amendment, he is challenging the validity of Section 23-J of the Amending Act so far as applicable to a retired servant of the company owned and controlled by the Central or the State Government. The proposed amendment is legal one and necessary for the decision of the Court with regard to the dispute between the parties.
10. The said applications have been opposed on behalf of the applicant. The learned counsel contended that so far as the amendment proposed in I.A. No. 2094/97 are concerned, related with the acquisition of the residential accommodation by the landlord during the pendency of the petition. The present application is filed by the applicant against the respondent for the eviction of a non-residential accommodation on the alleged requirement of the landlord. As such, the proposed amendment is irrelevant and not necessary for the just and fair disposal of the lis between the parties. The application is not based on bona-fide and deserves the fate of dismissal. As regards the amendment proposed in I.A. No. 3050/99, the learned counsel relied on the decision of Full Bench of this Court in case of B. Johnson Bernard v. C.S. Naidu (1985-JLJ-793) and submitted that in the aforesaid case, a Full Bench of this Court has held that the provisions of Section 23-J are not ultra-vires to Articles 14 and 15 of the Constitution of India but the provisions are intra-vires. As such, in view of the aforesaid decision, the said amendment is also irrelevant and not necessary for the decision of the Court with regard to the dispute between the parties.
11. Considering the submissions of the learned counsel and on perusal of the proposed amendments in I.A. No. 2094/97 and 3050/99 and the record as also in the light of the Full Bench decision of this Court in case of B. Johnson Bernard's case (supra), I do not find any substance in the said applications filed by the opponent for amendment of the written statements at the stage of Revision. The proposed amendments are irrelevant, unnecessary and not based on any bona-fides. It appears that the said petitions are filed only with the intention to prolong the matter which is already pending between the parties for the last 14 years. In the result, petition I.As. No. 2094/97 and 3050/99 are dismissed.
12. On considering the case on merits, on perusal of the impugned order, it emerged that the application for eviction filed by the applicant was mainly rejected on the grounds that the petition filed against the non-applicant alone is not maintainable. In this respect, the learned counsel for applicant submitted that it is not disputed that the suit shop was originally left to father of the present applicant Melaram in 1954 on the agreement of tenancy. On the death of said Melaram, the non-applicant being the eldest son and the 'Karta' of the joint family left by deceased Melaram was in occupation of the suit shop and carrying on his business in the suit shop for and on behalf of the family. He also pointed out that after the death of Melaram, non-applicant has deposited the rent of the suit shop during the pendency of the petition. Learned counsel invited my attention to the facts stated in the application filed by the non-applicant before the Rent Controlling Authority for grant of Leave to defend the petition under Section 23-C of the Act and submitted that in paras No. 2 and 3 of the said application, the non-applicant has stated that after the death of his father, he is carrying on the business in the suit accommodation for and on behalf of the joint family being the eldest son of the said Melaram. As such, the non-applicant of his own admission was the 'Karta' of the joint family and was doing the business in the suit shop for and on behalf of the family. Learned counsel submitted that in the light of the aforesaid admitted facts, it was not necessary for the applicant to implead all the heirs (family members) of the deceased tenant in the application filed for the eviction under Section 23-A of the Act.
13. The learned counsel relied on the decisions of this Court in case of Shambhudayal v. Suleman (1978 JLJ 398), decision of the Apex Court in case of High Court decision of Hon'ble the High Court in case of M/S. Vijaylaxmi Printing Press v. Nandulal Shankar and Ors. (AIRCJ-1994 (1)-600).
14. As against this, learned counsel for respondent contended that from the evidence of the respondent it is proved that after the death of Melaram in a suit filed by the applicant in the Court of IVth Civil Judge, Class-I Indore, which was subsequently withdrawn all the heirs of Melaram were impleaded as defendants. But in the present petition, only non-applicant was impleaded. This clearly indicates that the applicant intentionally did not implead the other family members in the present petition whereas all the heirs are necessary parties. In this respect, the learned counsel also pointed out that from the evidence of the respondent, the Rent Controlling Authority found that after the death of Melaram, the other family members of Melaram constituted a partnership firm M/s. M.R. Agency and Allied Services and this firm is in occupation of the suit shop and carrying its business in the suit shop. From Ex. D. 2, the Deed of Partnership, it also emerged that in the said Partnership, non-applicant Surendra Kumar is not a Partner. As such, the Rent Controlling Authority has committed no error in dismissing the applicant's petition, holding that the petition against the non-applicant alone is not maintainable.
15. Having heard the learned counsel and on perusal of the record as also on perusal of the application filed by the non-applicant under Section 23-C of the Act, seeking permission to Leave to defend and the affidavit filed alongwith the said application, it emerged that in the said application, the non-applicant has admitted that after the death of Melaram he is carrying the business in the suit shop for and on behalf of the family members of Melaram as he is the eldest son of the deceased Melaram. This clearly indicates that after the death of Melaram, non-applicant being the eldest son of the deceased becomes the Karta of family and he is in occupation of the suit shop for and on behalf of the family members and doing the family business for all the family members. In the aforesaid situation, as held by this Court and the Apex Court and also other High Courts, the suit for eviction after the death of original tenant is maintainable against the Karta of the said family. In the similarly placed situation, in H.C. Pandey's case (supra), Hon'ble The Apex Court has held that :--
'It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. Therefore when on the death of the original tenant the tenancy rights devolved upon the sons, daughters and wife of the original tenant and the terminating tenancy was addressed to any served upon one of the sons of the original tenant who paid rent on behalf of all and acted on behalf of all the heirs of the original tenant, the notice to only one of the joint tenants could not be said to be insufficient.'
16. In this respect, in case of Shambhudayal (supra) this Court has also held that :--
'After the death of the original tenant, the tenancy inherited by the heirs and all the heirs held it as joint tenants. The suit for eviction and arrears of rent brought against one of the joint tenants in actual possession is not bad and is maintainable.'
17. The same view was expressed by A.P. High Court in case of Vijaylaxmi Printing Press (supra), holding that 'the eviction petition in the name of Karta of the joint family is maintainable.'
18. In view of the facts of the present case and the law applicable, in my considered opinion, the Rent Controlling Authority has committed an error in deciding Issue No. 1 against the applicant dismissing the petition filed by the applicant on the ground of non-joinder of necessary parties. On perusal of the impugned order, it also emerged that the Rent Controlling Authority, on evaluating the evidence on record, while recording findings on Issue No. 2 has held that after the death of Melaram, the relationship of landlord and tenant are established between the applicant and the non-applicant being the eldest son of the deceased Melaram. Once the learned RACA comes to the conclusion that the relationship of landlord and tenant is established between the parties, the petition for eviction against the respondent alone is maintainable under the provisions of the M.P. Accommodation Control Act, 1961.
19. As a result of the foregoing discussion, the finding of the Rent Controlling Authority on Issue No. 1 cannot be sustained and deserves to be set-aside, holding that the petition for eviction filed by the applicant is maintainable against the non-applicant being the eldest son and Karta of family of the deceased tenant Melaram.
20. The petition is also rejected on the ground that the genuine requirement of the suit shop is not proved. Learned Tribunal in this respect, decided Issues No. 4, 5 and 7 against the applicant.
21. The learned counsel for applicant submitted that the finding on Issues No. 4, 5 and 7 are contrary to the provisions of law as also not in accordance with the evidence on the record. Learned counsel submitted that the Rent Controlling Authority has committed an error in rejecting the oral testimony of the applicant witnesses on the point of bona-fide requirement on the ground that the statements are not supported by documentary evidence. The learned Tribunal also committed an error in relying the report of the Revenue Inspector Ex. D. 1 (D. 6) when the same report was not relied by the Rent Controlling Authority at the time of passing final Order Ex. P.4 dated 12-10-1989 on the complaint registered under Section 39 (1) (2) of the Act. The learned counsel also pointed out that the Rent Controlling Authority has also committed an error in holding that an alternative accommodation is available with the landlord to fulfill his alleged need. In this respect, the impugned order of the Rent Controlling Authority is perverse and requires interference of this Court in exercise of the Revisional powers under Section 23-E of the Act. Learned counsel relied on the following decisions of this Court & Apex Court. (1) Bhoolchand and Anr. v. Kay Pee Cee Investments and Anr. (1991-MPRCJ-230), (2) Smt. Indra Kunwar Rathi v. Nanak Ram (1999 (1)-MPJR-513), (3) Gulam Hyder Ali v. Smt. Arifa Bano (1990-MPACJ-SN-21).
22. As against this, learned counsel for respondent submitted that the Court exercising Revisional powers has limited jurisdiction to interfere with the findings of the Court below, recorded on proper appreciation of the evidence on record. In exercise of the Revisional powers, the Court is not competent to reappreciate the evidence and record a contrary finding as recorded by the Court below. He submitted that the findings on Issues No. 4, 5 and 7 are based on proper appreciation of evidence on record and are not perverse; as such, cannot be interfered in the present Revision.
23. Having heard the learned counsel for parties and on perusal of the impugned order as also the evidence available on record, in my opinion, the findings of the learned Rent Controlling Authority on Issues No. 4, 5 and 7 are contrary to law and evidence on record and perverse. As such, this Court, exercising powers of Revision, is competent to re-consider the evidence and record its own findings in accordance with the law and the facts proved in the instant Case.
24. In case of M/s. Bhoolchand & another (supra), the Apex Court, while considering the scope of the Revisional powers of the High Court, has held that when the eviction on the one of the ground of bona-fide need is claimed and the Trial Court, while appreciating evidence of the applicant holding against the landlord that the oral evidence cannot be believed in absence of documentary evidence the Court held that no necessity of documentary evidence is required to decide the question of bona-fide requirement and any infirmity existing in the impugned order can be examined by the High Court exercising Revisional powers.
25. In case of Smt. Indra Kunwar Rathi (supra), this Court while considering the scope of Section 23-E has also held that the High Court's power of Revision under the aforesaid provision is less than the Appellate powers and more than the Revisional powers under Section 115 of the CPC. The Court also held that if the Court finds that the Lower Court has misread the evidence, misquoted the law, misinterpreted the law, has ignored to consider the evidence available on record has recorded a perverse finding; then the High Court would certainly be entitled to interfere with the findings recorded by the Trial Court. A similar view is also expressed by this Court in Gulam Hyder's case (supra) and held that 'where the Rent Controlling Authority has not viewed the case in proper perspective and omitted to consider the relevant evidence on record, it amounts to material irregularity in exercise of jurisdiction and the Court is competent to interfere in the findings of the Lower Court in exercise of the jurisdiction under Section 23-E of the Act.
26. In view of the aforesaid decisions of the Apex Court and this Court, on perusal of the facts and the evidence available on the record, I find that the Trial Court has committed an error in disbelieving the statements of the applicant witnesses on the ground that the statements are not supported by the documentary evidence. Learned Rent Controlling Authority also misread and misinterpreted Ex. D. 1 (D. 6), which is an interim report of the Revenue Inspector in a case instituted against the applicant under Section 39 (1) & (2) of the Act when the report was substituted by the final report and the final order passed by the Rent Controlling Authority filed at Ex. P. 3 and P. 4. The Trial Court has also committed an error in ignoring provisions of Section 23-D (3) of the Act which is extracted below for convenience :--
23-D (3) : 'In respect of an application by a landlord which 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 of Section 23-A is bona-fide.'
27. The aforesaid provision makes it clear that the initial burden lies on the landlord to establish his need with regard to the suit accommodation and once the said need is established the burden shifts on the tenant to prove that the need is not bona-fide or genuine. On perusal of the evidence on record, I am satisfied that from the statements of Dr. Sudhir Haksar (PW. 1) son of the applicant deposed on Power of Attorney of the applicant and also from the statements of (P.W. 2) Randhir Haksar, (P. W. 3) Ashwini Vyas, (P. W. 4) Farid Beig, it is primarily established that the applicant needed the suit shop for establishing the office of his third son Randhir Haksar, who become a Lawyer and practising at Indore as an Advocate. From the statements of the aforesaid witnesses, it is also established that the applicant is not possessed of any suitable accommodation of his own at Indore to fulfill the aforesaid need. It is also established from the evidence that the alternate non-residential accommodation suggested by the respondent got vacated from the other tenants are not vacant and available for the alleged need of the applicant. The other shops of the suit accommodation vacated by the other tenants are in occupation of the applicant and his two sons in which the applicant is carrying on the business of Property Broker, his elder son Ashok in one of the shops is doing the profession of Auto Dealer and the third shop is in occupation of his other son Dr. Sudhir Haksar, using it as his clinic. On perusal, it also emerged that the Rent Controlling Authority in its order suggested that the applicant's son Randhir Haksar can establish his office in one of the portion of the said house on the first floor used by the family for the residential purpose. It is apparent that the need alleged by the landlord is for the establishment of the office of his son Randhir who is practising as an Advocate. Definitely the need of the landlord is for the non-residential purpose and the alleged need cannot be denied to the landlord on the ground that some residential portion is available with the landlord in the same house in which his son can establish his office.
28. The law with regard to the bona-fide requirement of the suit accommodation for the alleged need of the landlord is well settled. In case of Damodar v. Nandram (1960-JLJ-473), the Full Bench of this Court has held that the word 'genuine' or 'bona-fide' used for the alleged need of the landlord speaks of the statement of mind of the landlord. Genuine means that which proceeds from his reputed sources, sincere, not false, fictitious, stimulated or spurious. So long as the landlord acts in a reasonable manner projecting the case of his need before the Court, cannot termed as mala-fide, tainted, false or fictitious, it has to be respected.
29. In case of Shankarlal v. Gajand (1993 (1)-MPWN-201), on the point of requirement of the suit accommodation by the landlord for the alleged need, this Court also held that 'it is well settled that the Rent Controlling Authority cannot act as rationing officer to compel the landlord to make use of residential accommodation in his possession of dyeing and printing. Once the bona-fide of the landlord are established and the need is proved the result of eviction should follow'.
30. The question of bona-fide requirement should be decided applying objective tests with the allege need of the landlord of the suit accommodation is genuine and reasonable.
31. In case of Vimladevi v. Dulichand (1994 (1)-MPJR-144), this Court has also held that in case of genuine requirement the Court cannot afford to adopt a pedantic approach. It has to be practical and reasonable. It has to be alive to the realities of life placing itself in the place of the landlord and then judge how it would have behaved placed in the circumstances of the landlord'. In the same case, this Court also held that 'the non-examination of the landlord is not fatal if the other evidence is available. In this case, the owner and the landlady of the house in dispute did not enter the witness box but her husband having power of attorney appeared and deposed to all relevant facts from his personal knowledge. Other evidence and few admissions of the defendants were also on record. In the circumstances, the Court held that the non-examination of the plaintiff was not fatal'.
32. In 1977 (1)-MPWN-209, Ramkanyadevi v. Ramsingh, it was held by this Court that if the landlord has got more than one major sons and if the bona-fide requirement for any of the major sons is proved, then, the plaintiff-landlord is entitled to obtain the relief of ejectment in respect of a non-residential accommodation.
33. In the instant case, from the evidence of the applicant, the requirement of the suit accommodation was amply proved for establishing the office of his one of the major sons Randhir who become an Advocate. In the present case, non-examination of the applicant as witness cannot be considered to be fatal as the major son (PW. 1) Dr. Sudhir Haksar appeared as witness under the power of attorney, deposed all the relevant facts on the points in dispute from his personal knowledge and no adverse inference can be drawn against the landlord on this count.
34. It is pertinent to note that in the instant case, the applicant landlord aged about 70 years, a retired servant of the MPSRTC, is contesting the lis since last 14 years for the suit accommodation, required bona-fide for establishment of the office of his one of the major sons, who become an Advocate. It is also pertinent to note that the suit accommodation was originally let to the deceased father of non-applicant Melaram as long as in 1954 on a nominal monthly rent of Rs. 78/- per month. The suit accommodation is situated in a prime locality and a market area of Indore city and the rental value of the suit accommodation as per existing rate must be much higher than the rent which is being paid by the non-applicant. Taking into consideration the aforesaid facts as also the need of the applicant of the suit accommodation, his prayer for eviction of the non-applicant from the suit shop cannot be denied applying a hypertechnical view with regard to the need of the suit accommodation.
35. As a result of the foregoing discussions and in the light of the facts of the case as also the law applicable, in my considered opinion, the Rent Controlling Authority has committed an error in recording findings of Issues No. 4, 5 and 7 against the applicant, rejecting his claim for eviction of the non-applicant from the suit shop. The findings of the Court below on the aforesaid issues being contrary to law and facts deserves to be demolished.
36. Consequently, this Revision petition succeeds and is accordingly allowed. The impugned order of the Rent Controlling Authority rejecting prayer of the applicant for eviction of the non-applicant tenant is set-aside. The application filed by the applicant under Section 23-A of the Act is allowed, directing non-applicant to deliver vacant possession of the suit shop to the applicant within a period of three months from today. The order of eviction shall be enforceably if the applicant complies with the provision of Section 23-G of the Act. The parties are left to bear their own cost of this Revision. Counsel fee Rs. 500/- is allowed to each party, if certified. Schedule of cost be drawn up accordingly.