ORDER
S.P. Srivastava, J.
1. Felling aggrieved by the order passed by the Rent Controlling Authority, Gwalior, directing the eviction of the tenant-applicant from the accommodation in dispute within two months subject to the payment of Rs. 7,800/- towards payment of rent for a period of two years, he has now approached this Court invoking its jurisdiction Under Section 23-E of the M. P. Accommodation Control Act, 1961, seeking redress praying for reversal of the impugned order.
2. I have heard the learned counsel for the tenant-applicant and the learned counsel representing the landlady-respondent and have also carefully perused the record.
3. The facts in brief shorn of details and necessary for disposal of this revision lie in a narrow compass. An application Under Section 23-A (b) of the M. P. Accommodation Control Act, 1961 was filed by the landlady-respondent on 25-3-1995 praying for recovery of the possession on eviction of the tenant-applicant from the accommodation in dispute which formed part of the residential house and had been let out for business purposes. The landlord has asserted that she was the owner of the accommodation in dispute which had been let out to the defendant-tenant for the non-residential purposes and was utilised by him for the said purpose for the last more than ten years. It was further asserted that the tenant defendant had closed his business which was being carried out in the shop in dispute and had started his own business in Delhi, keeping the shop in dispute under lock. The landlady claimed that the shop in dispute was genuinely and bonafidely required for establishing his son Mahesh in the business of electrical goods in the accommodation in dispute asserting that her son Mahesh, an unemployed graduate engineer was sitting idle and the Thekadari business previously being done by him had been closed and he was genuinely interested in starting his own business in the electrical goods for which purpose there was no reasonably suitable other accommodation available either to the landlady or to the son. The landlady had also asserted that the defendant-tenant was trying to hand over possession of the shop in dispute to other persons on a premium and on coming to know about his intention the landlady had sent a notice also, but neither the shop had been vacated nor a proper reply to the notice was submitted. It was further claimed that the defendant was also defaulter in the payment of rent which was lying in arrears since 1-8-1995.
4. The defendant-tenant moved an application on 19-9-1995 for permission to contest the application which was allowed. In the aforesaid application the tenant had asserted that the building of which the accommodation in dispute formed a part was owned by Battolal, the husband of the landlady, and after his death his heirs including the landlady together with his sons and daughters had become the landlords, but the application seeking recovery of possession was filed only by the widow, which was not permissible and the application is incompetent and is liable to be rejected. The defendant-tenant, however, did not dispute that he was continuing to be a tenant of the accommodation in dispute at a rent of Rs. 325/- per month. He, however, asserted that the landlady was not the only landlord and there were other co-landlords also in whose absence the proceeding was not maintainable.
5. Subsequent to the grant of permission to contest the application filed by the landlady, the defendant-tenant filed a written statement dated 31-10-1995. A perusal of this written statement indicates that the defendant-tenant accepted the landlady to be a co-landlord only and did not dispute the existence of relationship of tenant and landlord between him and the landlady. He denied that the shop was lying closed or that he had closed down his business which was being run therein. He, however, admitted that he had to go to Delhi in connection with his business with the result that off and on the shop remained closed. He denied the claim of the landlady that the shop was genuinely required for establishing her son, Mahesh in business. It was asserted that Mahesh was continuing his business as Contractor. It was further claimed that apart from the accommodation in dispute, there was other reasonably suitable accommodation available to the landlady. It was also claimed that Mahesh was doing other business in shares apart from his Thekadari business. Various other pleas were raised claiming adjustment of expenditure incurred by him in the maintenance of the accommodation as against the accrued rent claiming further that if adjustment was allowed there was no arrears of rent.
7. In support of her case the landlady had brought on record the original degree of Bachelor of Engineering awarded to Mahesh Babu Singhal, her son, by the Jiwaji University, Gwalior, indicating that Mahesh Babu had been conferred the Degree of Bachelor of Engineering in Electricals in First Division in the year 1973.
7A. It may further be noticed that during the pendency of the application, which was being tried as a suit, the applicant-plaintiff Smt. Ramkatoridevi suffered a set back on account of cerebral hemorrhage which resulted in partial paralysis affecting her speech. In the circumstances an application was filed praying to exempt her from appearing in Court for evidence and examine her as a witness and permit in stead his power-of-attorney holder, Mahesh, to lead evidence in support of her case. Taking in to consideration the relevant evidence and material brought on record including the fact that in another suit the effort to get the landlady examined on commission had proved futile, the Rent Controlling Authority granted the request exempting the landlady to appear as a witness in support of her case making it clear that no adverse inference will be drawn on account of her failure to appear as a witness and the case will be decided on merits. This order was passed on 23-9-1986. She got examined Mahesh Babu, Radhakishan Khetan and Gyanchand Parakh as witnesses in support of her case and closed her evidence on 31-5-1986.
8. The defendant-tenant examined in support of his case Dharmapal Batra, Jainarayan Arya and Pawan Anand. Virendra Sharma, the defendant tenant, appeared as a witness and his examination-in-chief was recorded on 5-8-1996. However, in spite of repeated opportunities having been provided he did not appear for being cross examined and ultimately on 12-2-1997 the Rent Controlling Authority closed his evidence making it clear that statement given by him in examination-in-chief will not be read in evidence. His evidence was closed on 20-8-1997.
9. It may be noticed at this stage that the defendant-tenant had brought on record a partnership-deed executed between him and Shri Dharmapal Batra on 9th of August 1995, a perusal of which indicates that defendant together with Shri Dharmapal Batra entered in to a partnership agreement for running a partnership shop in the name and style of M/s Lokesh Enterprises' for doing business in automobiles on various terms and conditions. The tenant, Virendra Sharma, had executed a power of attorney in favour of Dharmapal Batra authorising him to act on his behalf in all the proceedings including the proceedings giving rise to the present revision. Shri Dharmapal Batra had been examined as a witness in this case also. He, in paragraph 3 of his deposition recorded before the Rent Controlling Authority, admitted that the accommodation in dispute was being utilised for the business in automobile and previously Virendra Sharma was sitting in the shop but at present Dharampal Batra was sitting in the capacity of partner, there. It is, therefore, obvious that the partnership business, referred to hereinabove, was being continued in the accommodation in dispute and this fact was admitted by Dharmapal Batra examined as a witness of the tenant.
10. The present revision has been filed in the name of Virendra Sharma by Dharmapal Batra along with a Vakalalnama which has been signed by Dharmapal Batra only. All this indicates that subsequent to his examination-in-chief on 5-8-1996 the tenant, Virendra Sharma, apparently lost his interest as he even did not appear for cross-examination and did not take part in the proceedings before the Rent Controlling Authority and every thing was being done in his name by Dharmapal Batra, the partner of the new partnership business, which was started in the accommodation in dispute.
11. During the pendency of the case, on 23-4-1997 an application was filed on behalf of the tenant under Order 6 Rule 17, Civil Procedure Code seeking amendment in the written statement by adding paragraph 7-A there bringing on record the fact that there had been a 'Gharu-Batwari' (private partition) between the plaintiff-landlord and her sons in respect whereof a document in writing had been executed on 1-12-1992 signed by the plaintiff-landlady and her sons Mahesh and Anand, according to which the premises in dispute had fallen in the share of Mahesh and therefore since 1-12-1992 he had became the exclusive owner and landlord of the said accommodation with the result that Smt. Ramkatori, his mother, had no right, title or interest left in the accommodation in dispute and the application was not, therefore, maintainable, as Ramkatori could not be taken to be landlord as contemplated under the Act. It was asserted that the defendant tenant had come to know about the aforesaid fact on 21-4-1997. The defendant relied upon an alleged photostat copy of a document dated 1-12-1992 described as a family arrangement though it purported to transfer rights in the immovable property in present till, reserving the right of Ramkatori to receive rent of various portions of the house including the accommodation in dispute as before and further indicating that the daughters of Battolal had relinquished their rights. There is no dispute that the document had not been registered.
12. The Rent Controlling Authority vide its order dated 1-5-1997 rejected the aforesaid application holding that ex-facie the document in question did not inspire confidence and was ingenuine, vague and fictitious besides indicating a mala fide act on the part of the dependent. The Rent Controlling Authority vide the impugned order accepting the case set up by the landlady and disbelieving the evidence led by the defendant-tenant holding it to be unworthy of credit and further holding that the statutory presumption available Under Section 23A(a) of the M. P. Accommodation Control Act could not be taken to have been rebutted, rejected the application and passed the impugned order in favour of the landlady.
13. It may be noticed that the tenant, Virendra Sharma, had been examined as a witness in Original Suit No. 44-A of 1980, Battolal v. Gopal Prasad, on 1st November 1980, a certified copy of his deposition recorded in the Court of VI Civil Judge, Class II, in the aforesaid suit, was brought on record of the present case. In the aforesaid deposition Virendra Sharma had stated that the accommodation in dispute had been let out to him by Smt. Ramkatori and the relationship of Ramkatori and him was that of landlady and tenant and he had also executed a rent-note in favour of Smt. Ramkatori.
14. Learned Counsel for the defendant tenant has strenuously urged that the application filed by Ramkatori Under Section 23-A(b) of the M. P. Accommodation Control Act was not maintainable or entertainable. It has been urged that in order to maintain an application Under Section 23-A(b) of the Act, the applicant had to establish not only that there was existence of the relationship of landlord and tenant between him and the opposite party, but an additional fact that the applicant was the owner of the accommodation in dispute had also to be established. The contention is that in the proceedings Under Section 23-A of the M. P. Accommodation Control Act which is a special provision providing a speedy summary remedy for recovery of possession over a tenanted accommodation for specified categories of landlords to satisfy their immediate requirement of urgent and pressing nature which are genuine and bona fide, in addition to the proving of relationship of landlord and tenant, such landlord has in addition was required to prove that he is the owner of the accommodation over which possession is sought. It is urged that in the present case the landlady had failed to establish that she was in fact the owner of the accommodation in dispute and this omission according to the learned counsel for the applicant was fatal as in such a situation the application was liable to be dismissed outright as the prerequisite condition of being an owner of the premises in dispute could not be said to have been satisfied in the present case.
15. The learned counsel for the plaintiff respondent has, however, urged that the defendant tenant all through admitted the fact that he was continuing to occupy the accommodation in dispute as a tenant and had further admitted that the applicant Smt. Ramkatori was a co-owner of the building of which the accommodation in dispute formed part. The contention is that the requisite conditions contemplated Under Section 23-A of the Act stood amply satisfied. It has further been urged that in any view of the matter the defendant-tenant was not entitled to raise such a plea as he stood estopped from denying the title of the applicant-landlady in view of the provisions contained in Section 116 of the Evidence Act. It is pointed out that when the tenant admitted that the accommodation in dispute had in fact been let out to him by the applicant herself, it was not open to him under the law to deny title of Smt. Ramkatori and in this view of the matter the plea sought to be raised about the applicant being not the owner of the accommodation in dispute cannot be permitted to be raised at the instance of the defendant-tenant.
16. I have given my anxious consideration to the rival contentions of the learned counsel for the parties and have also perused the relevant provisions of the Act.
17. In fact a similar controversy, as raised by the tenant-defendant, had come up for consideration before the Apex Court in its decision in the case of Anar Devi v. Nathuram , reported in 1994 JLJ 486. While considering the question whether the words used in Clause (b) of Section 23-A, 'if he is the owner thereof required the landlord who submits an application under that clause to plead in such an application that he is the owner of the accommodation the recovery of which he seeks from his tenant and also to establish by evidence aliunde that he is such owner, was considered by the Apex Court in quite detail, and after taking into account the legislative policy underlying the various provisions of the Act it was indicated that the legislature by use of the words 'if he is the owner thereof in Clause (b) of Section 23-A could not have intended to require the landlord for whose benefit that provision was made, to plead in his application and to establish by evidence aliunde, that he was the owner of the accommodation. It was further observed that it was difficult to think that the words 'if he is the owner thereof used in Clause (b) of Section 23A are intended to require the landlord to plead in his application for recovery of possession made under the clause, his ownership of accommodation, and establish the same by evidence aliunde, to succeed in recovery of possession of such accommodation from the tenant. It was indicated that, therefore, what could be said of the words 'if he is the owner thereof used in Clause (b) of Section 23-A is that they are although meant to enable the landlord who is the owner of the accommodation to submit an application under that clause for recovery of possession of the accommodation from his tenant, they are not intended to require such landlord to plead in his application that he is the owner of such accommodation and adduce evidence aliunde in that behalf for succeeding in that application. It was clarified by the Apex Court that even though these words may enable a tenant to contest such application on the ground that the landlord is not the owner of the accommodation if he is not inhibited from doing so Under Section 116 of the Evidence Act.
18. In the aforesaid case decided by the Apex Court the respondent-tenant had acknowledged the ownership of the applicant-landlady and had regarded her as the landlady in his counter notice and his own plaint in the other suit and was thus found that he was not even entitled to deny the title of the applicant to the accommodation. In the aforesaid view of the matter the Apex Court had reversed the order of this Court.
19. In an earlier decision of the Apex Court rendered in the case of Palsingh v. Sunder Singh reported in AIR 1989 SC 758 had clarified that a tenant in such a suit cannot deny the title of the landlord in its basic foundation. He could not deny that the landlord had no title to the premises at the commencement of the tenancy. Under the general law, in a suit between the landlord and tenant the question of title to the leased property was irrelevant. It was also indicated that it was inconceivable to throw out the suit on account of non-impleadment of other co-owners as such. It was also pointed out that the law is that the estoppel of a tenant Under Section 116 of the Evidence Act was a recognition and statutory assimilation of the equitable principles underlying the estoppel in relation to tenants.
20. It may be noticed that in its decision in the case of Anardevi v. Nathuram reported in 1994 JLJ 486 the Apex Court had indicated that the doctrine of estoppel by contract finds statutory recognition Under Section 116 of the Indian Evidence Act and in that, it states that no tenant of immovable property, or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property, quoting with approval the observations made by Jessel, M. R. in the case of Stringer's Estate Show v. Jones-Ford, IR 6 Ch.D.L., explaining that where a man having no title obtains possession of land under a demise by a man in possession who assumes to give him a title as tenant, he cannot deny his landlord's title, as for instance, if he takes for twenty one years and he finds that the landlord has only five years' title, he cannot after five years set up against the landlord the jus tertii, though, of course, the real owner can always recover against him. He took possession under a contract to pay rent so long as he held possession under the landlord, and to give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admits and under whose title he took possession has not a title.
21. In its decision in the case of Tej Bhan Madan v. II Addl. District Judge reported in AIR 1988 SC 1413 the Apex Court observed that there can be a denial of the title of his landlord without the tenant renouncing his character as such where, for instance, he sets up a plea of jus tertii, but a tenant cannot deny the title of the landlord from its basic foundation and he cannot approbate and reprobate. In the present case there is no dispute that the tenant Virendra Sharma had been throughout paying rent to Smt. Ramkatoridevi and even the documents relied upon by him secured that right to receive rent.
22. The ratio of the decisions of the Apex Court in the aforesaid cases stand squarely attracted to the facts and circumstances of the present case. The contention urged by the learned counsel for the tenant-applicant noticed hereinabove is clearly devoid of merits and are not at all acceptable.
23. Learned counsel for the defendant-applicant has next contended that the Rent Controlling Authority has manifestly erred in rejecting the application for amendment in the written statement filed by the defendant on 23-4-1997. It has been urged that the Rent Controlling Authority had rejected the aforesaid application for amendment considering the merits of the pleas raised in the proposed amendment for which there could be no justification especially when the evidence had not been led in support of the facts asserted in the proposed amendments.
24. Learned counsel for the landlady respondent has however urged that the plaintiff had closed her evidence on 31-5-1996. The application Under Section 23-A had been filed by the respondent on 25-8-1995 and that ought to have been decided within a period of six months from the date of permission to contest, which had been granted on 17-9-1995. The defendant-tenant was only interested in prolonging the proceedings gaining time for continuing in occupation of the accommodation in dispute and the application seeking amendment in the written statement was an attempt to prolong the proceedings with a mala fide intention especially when the proposed amendments were wholly inconsequential as having admitted the payment of the rent to the applicant, Smt. Ramkatori throughout even subsequent to the year 1992 and having admitted her ownership and the fact that the premises had been let out by her alone, the statutory provisions contained in Section 116 of the Evidence Act were glaring on the face of the record and any inquiry into the facts sought to be brought on record by way of amendment would have been entirely futile. The trial Court was fully justified in rejecting the application dated 23-4-1997.
25. As has already been noticed hereinabove, it was not necessary for the plaintiff to prove her ownership also for maintaining the application Under Section 23-A (b) of the Act. As has been clarified by the Apex Court, the tenant stood estopped from denying the title of the applicant to the accommodation in suit in view of his clear-cut and categorical admissions which had neither been withdrawn nor had been explained away in any manner. Through the proposed amendments the defendant in essence had tried to raise a plea of jus tertii but even ex-facie the document sought to be relied upon in support of such a plea which was the only foundation for the aforesaid plea could not be looked into for the purpose not only because the alleged family arrangement had the result of effecting the partition in presentii and also involved the relinquishment of the right, title and interest of various co-owners in the immovable property in question, which made the said document compulsorily registerable which was not done but also because even under the terms and conditions of that document the right to receive rent in respect of the accommodation in dispute stood secured in favour of Smt. Ramkatori having the effect of continuing the relationship of landlady and tenant between her and the present applicant.
26. In the aforesaid view of the matter it seems to me that the proposed amendments were wholly inconsequential and no interference is called for in the order passed by the trial Court refusing to allow such amendments.
27. It has next been contended that the application filed by Smt. Ramkatori, the landlady, was liable to be dismissed as she had failed to examine herself as a witness in support of her claim and in the circumstances an adverse inference ought to have been drawn against her. It has been urged that the bona fide requirement represents in the first place a state of mind though it may be something more. It has been urged that it must, therefore, be deposed to by the person who is requiring the premises i.e. the landlady in the present case and if the landlady did not step in to the witness-box to bring before the Rent Controlling Authority legal evidence for establishing her requirement then it could not be said that she reasonably and bonafidely required the premises in question and the landlady could not delegate the duty to depose in support of her case.
28. Learned counsel for the respondent has however urged that the Rent Controlling Authority was fully justified in exempting the presence of the landlady and the order passed by it that no adverse inference will be drawn and the case will be decided on merits does not call for. any interference taking into account the peculiar facts and circumstances established on record which indicated that it had become impossible for the landlady to appear as a witness and the Court could not insist for something which was impossible to perform. The learned counsel for the respondent in support of his submission has placed strong reliance upon the decision of a learned Single Judge of this Court in the case of Kaluram v. Gendalal, reported in 1995 (II) MPWN Note 43 wherein it has been clarified that mere non-examination of the plaintiff will not lead to drawing an adverse inference and the dismissal of the suit in a case where the plaintiff had not been examined on account of his old age and immobility.
29. In the present case, it stood established on the record that the plaintiff could not appear as a witness and further that she could not be even examined on commission on account of her physical disability to which a reference has already been made above.
30. In the circumstances I find no justification for taking a departure from the view taken by the learned Single Judge in the aforesaid case. The order passed by the Rent Controlling Authority dated 15-3-1996 does not call for any interference and the contention urged by the learned counsel for the applicant is not at all acceptable.
31. Learned counsel for the defendant applicant has next contended that the findings returned by the Rent Controlling Authority on the question of bona fide requirement are not liable to be sustained and has tried to assail them.
32. Learned counsel for the respondent however, urged that the defendant, Virendra Sharma, faced with his clear cut and categorical admissions had no courage to appear in Court for being cross-examined in spite of repeated opportunities having been provided for the purpose, with the result that the Rent Controlling Authority had to pass an order that his statement in examination-in-chief will not be read and will be ignored. It has been contended that in such a situation the defence put in by the tenant Virendra Sharma is liable to be ignored altogether. After all, it is contended that the witnesses are examined by a party in support of his case but where the party himself absents then in that case the entire evidence led on his behalf is liable to be ignored unless the absence of the concerned party is satisfactorily explained otherwise an adverse inference against such a party which is permissible to be drawn in the absence of his being examined as a witness in support of his case can also be drawn against the tenant-defendant in his absence without any satisfactory explanation. It has further been pointed out that the landlady/applicant indicated in her application that the tenant with an evil intention intended to hand over possession of the shop in dispute to other persons by accepting a premium. The absence of the tenant Virendra Sharma and his loss of interest in the proceedings giving rise to this revision in not presenting himself for cross examination and admission of Dharmapal Batra that he is utilising the accommodation in dispute for carrying on the business therein, all indicate that the defence set up by the tenant Virendra Sharma was not reliable and the Rent Controlling Authority was justified in rejecting the same and proceeding on the basis that the statutory presumption available to the landlady envisaged Under Section 23-D of the Act had not been rebutted at all.
33. I have carefully perused the impugned order. As has already been noticed hereinabove the need of the landlady to establish her unemployed graduate son having a First Class degree in the subject of engineering in Electricals has been found by the Rent Controlling Authority to be bona fide and genuine.
34. Taking into consideration the evidence and materials on record and the facts and circumstances proved and established on record, the findings returned in favour of the landlady do not appear to suffer from such legal infirmity which may justify any interference in the present proceedings while exercising the revisional jurisdiction envisaged Under Section 23-E of the M. P. Accommodation Control Act, 1961.
35. In the result, this revision which is clearly devoid of merits, deserves to be and is hereby dismissed.
36. There shall, however, be no order as to costs.