Judgment:
ORDER
S.B. Sakrikar, J.
1. This Order shall govern the disposal of the aforesaid revisions arising out of the eviction orders passed against the applicants on two separate applications filed on behalf of the respondent-landlords Under Section 23-A of the M.P. Accommodation Control Act (for short the Act'). In the aforesaid revisions some common questions of law are raised on behalf of the petitioners and the petitions are also based on some common facts as such the petitions are being disposed of by common order.
2. In both the revisions applicant-tenants have directed revisions Under Section 23-E of the M.P. Accommodation Control Act against the order passed by the RCA Indore respectively dated 21-1-1997 in case No. A-90 (7)/ 57/95 and order dated 3-12-98 in Case No. A-90(7)/56/95.
3. Briefly stated the facts of the case are that the non-applicants are the landlords and owners of the house No. 184 situated in M.T. Cloth Market Indore. It is stated that on the ground floor of the said house two shops are situated belonging to the non-applicant-landlords. It is further stated that one of the shop of the ground floor of the suit house is in occupation of the applicant Dhannalal, whereas the other shop adjacent to the first is in occupation of M/s. Tulsidas Sureshchandra, as tenants. It is alleged that the suit shops were given on rent to the respective applicants by the husband of non-applicant No. 1 Krishnadas, father of non-applicant Nos. 2 and 3. The suit shops were given on rent to the applicants for non residential purpose and the applicants are running their shops in the tenanted premises.
4. Non-applicant No. 1 alleging herself to be the owner and the landlord, on the death of Krishnadas, filed two separate applications before the RCA Indore Under Section 21-A of the Act for the eviction of the applicant-tenants, on the ground that the shop in occupation of applicant Dhannalal is required bona fidely for starting business of her second son non-applicant No. 2. Govinda, and the shop in occupation of M/s. Tulsidas Sunderlal is required by the non-applicant No. 1, genumely for shifting ready-made garment shop run by him in a rented accommodation situated in Gorakund, Indore. It is also stated that the non-applicants/landlord have no other suitable accommodation of their own for their alleged need of establishment of the shops and on this ground the landlord prayed for eviction of the applicants from the disputed shops of the suit house.
5. Both the applicant-tenants have opposed the applications filed by the landlord Under Section 23-A of the Act mainly on the ground that the need as alleged ts not bona fide. The non-applicant/landlords have suitable accommodation of their own in the same building in which they can establish their shops of ready-made garments as also selling cloth. It is also stated that on the death of original landlord Krishnadas, his widow and two sons and the daughters also become the owner of the suit house. The petition is filed only by the widow of Krishnadas and his two sons. The daughters are not joined as petitioner, as such the petition deserves to be dismissed for non-joinder of the necessary parties.
6. The learned RCA, on evaluating the evidence adduced on behalf of the parties, allowed both the applications of the non-applicants-landlord filed against the respective applicants Under Section 23-A of the Act and directed eviction of the applicants from the respective suit shops in their occupation by the impugned orders as indicated above. Aggrieved, the applicants have filed aforesaid two revisions against the respective orders of eviction passed against them.
7. I have heard Shri S. D. Sanghi, learned Sr. Counsel with Shri Modi for the applicants and Shri G. M. Chafekar, learned Sr. Counsel with Shri Bohara for the respondents in Civil Rev. No. 316/97 and Shri B. L. Pavecha, learned Sr. Counsel with Shri Mithal for the applicants and Shri P, K. Saxena, learned Sr. Counsel with Shri M. S. Jain, for the respondents in Civil Rev. No. 74/99.
8. In both the revisions, the learned counsel for applicants have raised a common question of law that, 'whether a widow who is a co-owner of the suit accommodation is competent to file a petition before the RCA Under Section 23-A of the Act for the alleged need of her major sons who are also the joint landlords of the suit accommodation?'
9. In this respect, it is submitted onbehalf of the applicants that Under Section 23-A (b) of the Act a landlord falling under the category covered under the definition of Section 23-J of the Act is competent to claim eviction for the need of his major son who is not a landlord and competent to file a civil suit for eviction before the regular Court Under Section 12 (1) of the Act. It is also submitted that if it is contemplated that Under Section 23-A (b), a widow is competent to file an application before the RCA for eviction of her tenant on the ground of need of her son who is also owner and the landlord of the suit accommodation and competent to file a civil suit before the regular Court for his need, then, such an interpretation violates fundamental rights under Article 14 of the Constitution of India The alleged interpretation shall result in an illegal discrimination for no just reason between a son whose mother though a widow is alive and other son who has no mother living. The learned counsel submitted that in view of the aforesaid submissions the Division Bench decision of this Court in case of Shivraj Jat v. Ashalata Yadav. 1989 MPLJ 202 does not lay down the correct law and the question involved in these revisions deserves to be referred for consideration to the larger bench of this Hon'ble Court.
10. As against this, the learned counsel for respondents appearing in the respective revision petitions submitted that the law laid down by the Division Bench of this Court in Shivraj Jat's case is in conformity with the objects and the reasons considered by the legislature for incorporating Chapter III in the Act (substituted by Act No. 7 of 1985 effective from 16-1-1985). The learned counsel also submitted that the amendments incorporated in the Act by Act No. 7 of 1985, do not contravene Article 14 of the Constitution in any way. A reliance was placed on the subsequent Full Bench decision of this Court in case of Harbans Singh v. Smt. Margarat G. Bhingardive, AIR 1990 MP 191 and in case of Kunjulal Yadu v. Parasram Sharma, 2000 (2) MPLJ 514 : (AIR 2000 MP 235). Reliance was also placed on the Division Bench decision of this Court in case of B. Johnson v. C. S. Naldu, 1985 JLJ 793 which says that a classification of special categroy of the landlords specified in Section 23-J of the Act is reasonable and not ultra vires to Article 14 of the Constitution of India.
11. Considering the submissions of the learned counsel for parties and on perusal ofthe subsequent decision of the Full Bench of this Court, I do not consider it necessary to refer the question raised on behalf of the applicants for reconsideration of the ratio of law decided by the Division Bench of this Court in Shivraj Jat's case (supra), Division Bench of this Court has considered the legal aspect of the controversy raised on behalf of the applicants in this revisions and held that :--
'a suit byjoint landlords out of whom, one is a landlord within the meaning of that expression as defined by Section 23-J of the Act can be entertained by the RCA and when the other coowners, if any, do not object to eviction, the relief of eviction can be granted if the accommodation is bona fide required by the landlord for starting the business of the major son or daughter'.
12. The view taken by the Division Bench is based on the decision of the Supreme Court in case of Kanhailal Sur v. Paramnldhi Sadhukhan, AIR 1957 SC 907 in which it is held that 'if the words used in the Section are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act.;'
13. The Full Bench of this Court in Kunjulal Yadu's case (supra) also considered the scope of Section 23-J of the Act and held that at page 240 :--
'Under Section 23-J of the Act a landlord has been given a simple unequivocal, unambiguous and clear definition. A landlord means a landlord who is a retired government servant of any government. It also includes other categories but we have preferred specifically to a retired servant of any government as that is relevant for our purpose'.
In case of B. Johnson (supra), the Division Bench agreed that :--
'a class within a class to save it from being hit by equality clause enshrined under Article 14 of the Constitution. If the language employed Under Section 23-J of the Act is read in proper perspective there is no need or justification to create a class within a class or for that matter there was no need to be conscious of the concept of the over inclustveness is the dictionary clause makes a retired government servant stand on different footings than other types of landlord.'
In the aforesaid case, the Full Bench also held that :--
'in this context we would like to state the language being clear and unambiguous nothing should be added or substracted from it. There is no need to read it down to save it from the rigors of Article 14 of the Constitution of India. We may state here at the cost of repetition that the language used in Section 23-J is of wide amplitude.'
14. In other decision of the Full Bench of this Court in Harbans Singh's case (supra), the question raised on behalf of the applicants also get concluded. In the aforesaid case, the Court held that at page 198 :--
'the widow who falls in the special category of landlord as defined Under Section 23-J can maintain an application before the RCA Under Section 23-A of the Act for the Joint need of herself and her married son who do not fall in the special category of landlord defined in Sec, 23-J of the Act.'
15. If the submissions of the learned counsel for applicants is accepted then it will create a class within the class of the widow landlord having a major son who is a co-landlord and the widow having a son who is not a co-landlord. As such, the Courts are not competent to interpret widow landlord as defined Under Section 23-J of the Act that creates a class within the class of the widow landlord as indicated above.
16. As a result of the foregoing discussion as also the law laid down by the subsequent Full Bench decision of this Court as discussed above, in my considered opinion, the view taken by the Division Bench of this Court in Shivraj Jat's case (supra), does not require reconsideration by referring the question raised on behalf of the applicant for decision to the larger bench of this Court. Consequently, the contention of the learned counsel for applicants cannot be accepted that the application filed by the non-applicants for the alleged need of non-applicant Nos. 2 and 3 taking shelter of their widow mother for filing an application for eviction of the applicants Under Section 21-A of the Act is not maintainable.
17. On the submissions of the learned counsel for the parties, the other question arise for decision in these revision is the scope of interference by the High Court exercising revisional powers Under Section 23-E of the Act.
18. The learned counsel for applicants submitted that in view of the language used in Section 23-E of the Act, the revisional powers of this Court are much wider than the revisional powers available to this Court exercising jurisdiction Under Section 115 of the CPC. In this respect, the learned counsel submitted that Under Section 23-E (2) of the Act, this Court is competent to examine legality, propriety or correctness of the order passed by the RCA and also competent to examine the regularity of the proceedings of the RCA and pass such order as it thinks fit.
19. As against this, the learned counsel for the non-applicants submitted that the High Court exercising Revisional jurisdiction has a limited powers in interfering with the findings of the fact recorded by the RCA on appreciation of the evidence available on the record. Counsel submitted that reappraisal and reappreciation of the evidence by the High Court to reach different finding is not permissible. Reliance is placed on the decision of the Apex Court in case of Sarla Ahuja v. United India Insurance Co. Ltd., AIR 1999 SC 100 and in case of Miss Kanta Udharam Jagasiav. C.K.S. Rao. AIR 1998 SC 569.
20. I have considered rival submissions of the learned counsel for the parties and also perused the language used in Section 23-E of' the Act which is extracted below for convenience :--
'23-E. Revision by High Court -- (1) Notwithstanding any thing contained in Section 31 or Section 32, no appeal shall lie from any order passed by the Rent Controlling Authority under this Chapter.
(2) The High Court may, at any time, 'suo motu' or on the application of any person aggrieved, for the purpose of satisfying itself as to the legality, propriety or correctness of any order passed by or as to the regularity of the proceedings of the Rent Controlling Authority, call for and examine the record of the case pending before or disposed of by such Authority and may pass such order in revision in reference thereto as it thinks fit 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 of a revision under Section 115 of the Code of Civil Procedure, 1908 (V of 1908) as if any such proceeding of the 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 of the order sought to be revised'.
21. The Division Bench of this Court in case of B. Johnson v. C. S. Naidu, 1985 JLJ 793 has considered the scope of Interference by this Court in the order of the RCA exercising revisional powers Under Section 23-E of the Act and held that :--
'Section 23-E provides for a revision by the High Court. Sub-section '1' says that no appeal shall He from any order passed by the RCA under Chapter III-A. Sub-section (2) then provides for a revision by the High Court either suo motu or on the application of any aggrieved person'.
The Court further held that :--
'the first part of Sub-section (2) of Section 23-E of the Act has to be construed similarly as conferring a power of revision wider than the power of appeal which permits interference where there was a tatnt of such unreasonableness resulting in a miscarriage of justice. The other part of Sub-section (2) can be given a meaning and it can be reconciled with subsection (1) which expressly provides that no appeal lies, is to construed Sub-section (2) as providing for the power of revision to correct any defect in the order of RCA which taints it with such unreasonableness that it result in miscarriage of justice and this has to be done keeping within the limits pre-scribed by Section 115 of the CPC 'as far as may be'. In other words, the power of revision is not restricted to the narrow limitation of Section 115 of the CPC but ii is not as wide as that of an appeal and the indication is that an attempt should be made to keep as near as possible to the limits of the powers of revision Under Section 115 of CPC exceeding the same only to the extent necessary for preventing miscarriage of justice'.
22. A simitar view is also expressed by this Court in case of Smt. Indrakumari v. Nanak, 1999 (1) MPJR 513 nd in case of Gulam Haidar Ali v. Arifa Bano, 1990 MPACJ SN 21 and it was held that 'the High Courts power of revision Under Section 23-E of the Act is less than the appellate powers and more than the revisional powers Under Section 115 of the CPC.
23. In view of the language used in Section 23-E of the Act and in the light of theaforesaid decision of this Court, in my considered opinion, the scope of this Court considering a revision Under Section 23-E of the Act is little more than the revisional jurisdiction exercisable Under Section 115 of the CPC and less than the appellate powers exercisable by this Court provided under the law.
24. Consequently, it can be concluded that this Court exercising powers Under Section 23-E of the Act shall interfere with the findings of the facts recorded by the RCA when the Court finds that the RCA has misread the evidence, ignored to consider the evidence and thereby recorded a perverse finding or has committed illegality by misquoting law or misinterpreted the law applicable to the instant case.
25. On considering the two cases on merits, on perusal, it emerged that in both the cases on appreciation of the evidence of the parties, the RCA comes to the conclusion that out of the two suit shops one of the shop is required by the non-applicant/landlords for starting the business of cloth for non-applicant No. 2 Govinda, major son of non-applicant No. 1, Smt. Kalavatibai whereas the other shop in occupation of M/s.Tulsidas Sureshchandra is genuinely required by the non-applicant/landlords for establishment of the readymade garment shop of non-applicant No. 1. Hemant at present who is doing his business in a tenanted shop situated at Gorakund, Indore.
26. In both the cases the applicant-tenants have opposed the alleged need of the non-applicant/landlords mainly on the ground that the landlords are in possession of the other shops situated on the first floor of the suit house which are equally suitable for the alleged need of the non-applicant/ landlords for starting their business of cloth and readymade garments. It is also stated on behalf of the applicants that some of the shops got vacated during the pendency of the petition were not occupied by the landlords and they were let out to the other tenants. On the aforesaid submissions, the applicant-tenants submitted that the alleged need is not bona fide.
27. In Civil Revision No. 316/97 on behalf of the applicants I.A. No. 6/98 and I.A. No. 1472/98 are filed respectively under the provisions of Order 41 Rule 27 read with Section 151 of CPC and under Order 6 Rule 17 read with Section 151 CPC. The arguments on the aforesaid applications is also heard along with the final hearing of the revision on merits.
28. Along with the application filed under Order 41, Rule 27 CPC the applicants filed the copy of the plaint of Civil Suit No. 80/86 filed by the husband of the non-applicant No. 1 Krishnadas against his tenant Tejumal for his eviction from one of the shop situated on the ground floor of the said house. A copy of the notice given to said Tejumal before filing of the suit was also filed. The copy of the order sheet dated 25-3-1991 of the aforesaid suit was also filed along with the petition and prayed that the said documents may be admitted on evidence by way of additional evidence.
29. Considering the submissions of the learned counsel on the aforesaid application and on perusal of the record, it emerged that in all five shops are situated on the ground floor of the suit house and during the lifetime of Krishnadas he was the owner of all the five shops situated on the ground floor of the said house. It has already come on the record that out of the five shops situated on the ground floor of the suit house, three shops in occupation of different tenants were sold to the respective tenants by the husband of the non-applicant No. 1 Krishnadas after serving them with the notice of eviction and instituting a suit for ejectment in the regular Court under the provisions of M.P. Accommodation Control Act. As such, in view of the facts already available on the record of the RCA the documents filed on behalf of the applicant cannot be admitted in evidence by way of additional evidence under the provisions of Order 41 Rule 27 CPC. As such, I.A. No. 6/98 filed on behalf of the applicant deserves the fate of dismissal and is accordingly dismissed.
30. With regard to I.A. No. 1472/98 filed on behalf of the applicants under Order 6 Rule 17 CPC seeking amendments in the written statement, on perusal, it emerged that by the proposed amendments he wants to take the objection that during the pendency of the revision petition one Balaram who was in occupation of a shop on the first floor of the suit house as tenant of the non-applicants has vacated the same and the respondents despite receiving the vacant possession of the said shop did not utilise the said shop for their alleged need and the same was let out to some other tenant who started the business of selling of Saris in the said shop. The proposed amendment was sought on theground of the subsequent event taken place during the pendency of the revision petition.
31. I have considered rival submissions of the learned counsel for parties and also perused the record. On perusal, it is found that the applicant has raised similar type of objection in his reply filed before the RCA with regard to the other shops available at that time with the landlords situated on the first floor of the suit house. The learned RCA on evaluation of the evidence adduced on behalf of the parties, has recorded a finding in the impugned order that the shops available with the landlords on the first floor of the suit house cannot be considered to he reasonably suitable for the alleged need of the landlord in comparison to the shops situated on the ground floor of the said house.
32. In view of the aforesaid facts, I do not find that the proposed amendment is relevant or necessary for the fair disposal of the controversy between the parties in this revision. As such, I.A. No. 1472/98 also stands dismissed.
33. On considering the submissions of the learned counsel for parties in both the revision petitions on the point of requirement of the suit shops by the landlords for their alleged need, it emerged that in Dhannalal's case, the non-applicant/landlords have examined PW. 1 Govinda and PW. 2 Kalavatibai whereas the applicant-tenant Dhannalal has examined himself and two witnesses DW.2 Arun Kumar and DW.3 Doulat in support of their respective contentions. In case against M/s. Tulsidas Sureshchandra the non-applicant/landlords have examined PW.1 Hemant Kumar and PW. 2 Kalavatibai whereas the applicant tenant has examined DW. 1 Doulat, a partner of the applicant firm and witness Thakurdas (DW.2) Antim Kumar (DW.3) Jaswant Kumar (DW. 4) Laxmichand (DW.5) and Mukesh Kumar (DW. 6) in support of their contentions.
34. On evaluating the statements of the witnesses examined on behalf of the parties in the respective cases, the RCA recorded a finding in favour of the non-applicant/landlords that the suit shops in occupation of the applicant Dhannalal and M/s. Tulsidas Sureshchandra are required by the non-applicants for starting the business of non-applicant Govinda for establishment of the readymade garment shop, and for non-applicant Hemant who is running the saidshops in a tenanted premises situated in Gorakund area of Indore. The learned RCA also recorded a finding that the landlords have no other suitable accommodation of their own situated on the ground floor in the market area of Indore for the alleged need,
35. The learned counsel for non-applicant/landlords with reference to the provisions of Section 23-D of the Act submitted that once the landlord prima facie succeeded in establishing the need of the suit accommodation for their alleged need, then, in view of the provisions of Section 23-D, the burden to prove that the alleged need of the landlords is not bona fide shifts on the tenant. The counsel submitted that from the evidence of the applicant available on the record, the presumption arising Under Section 23-D (3) of the Act, does not stand rebutted. As such, the order of eviction passed against the applicant-tenants does not require any interference exercising powers Under Section 23-E of the Act.
36. Considering the submissions of the learned counsel for non-applicants and on perusal of the evidence of the parties as also the provisions of Section 23-D of the Act. it is found that Under Section 23-D (3) of the Act it is provided that 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 of Section 23-A is bona fide. On perusal of the evidence adduced on behalf of the applicants of the respective revisions, I do not find that the RCA has committed any illegality in holding that the presumption available Under Section 23-D (3) of the Act does not stand rebutted. As such, the finding on the point of the bona fide requirement of the suit shop recorded by the RCA in favour of the landlords does not require any interference in the respective petitions.
37. On considering the law on the point of bona fide requirement of the suit shop by the landlords, it is found that the requirement of the suit shops for the alleged need of the landlord cannot be considered unreasonable on the ground that during the life time of Shri Krishnadas. husband of non-applicant No. 1, has transferred the three shops situated on the ground floor of the same house to different tenants in occupation long back. In this respect, the requirement of the landlord should be considered in the present state of affairs i.e. after the death of Krishnadas, husband of non-applicantNo. 1, and the father of non-applicants Nos. 2 and 3. The alleged need of the landlords of the suit shops situated on the ground floor of the suit house in the market area of Indore also cannot be considered to be unreasonable or mala fide on the fact that some shops are vacated by the tenants of the landlords situated on the first floor of the said house, were available with the landlords and the same were let out to some other tenants. A reasonably suitable alternate accommodation available with the landlord can be taken into consideration when the alleged alternate accommodation is available with the landlord in similarly situated accommodation.
38. In case of Raghavendra Kumar v. Firm Prem Machinery and Company, AIR 2000 SC 534, the Apex Court while considering the bona fide need of the accommodation in occupation of the tenant has held that :--
'in a case for bona fide requirement of the suit accommodation for starting the business landlord stating in his evidence that he owns many shops and houses but none was vacant and the suit premises was most suitable for his business-Concurrent finding that requirement of the landlord was bona fide recorded by lower Courts on appreciation of evidence on record --- Interference in Second appeal on erroneous view that landlord had admitted that he was in possession of many shops was not proper.'
The Apex Court also held that :---
'It is true that the plaintiff landlord in his evidence slated that there were number of other shops and houses belonging to him but he made a categorical statement that the said house and shops were not vacant and that the suit premises is suitable for his business purpose. It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter.'
39. In case of Dattatraya Laxman Kamle v. Abdul Rasul Moulali Kotkune, AIR 1999 SC 2226 the Apex Court has also held that at page 2228 :--
'In fact both terms (reasonably and bona fide) are complimentary to each other in the context, for, any unreasonable requirement is not bona fide. Vice versa can also be spelt that if the requirement has to be bona fide itmust necessarily be reasonable also. But when the legislature employed the two terms together the message to be gathered is that the requirement must be really genuine from any reasonable standard. All the same, genuineness of the requirement is not to be tested on a par with dire need of a landlord because the latter is a much greater need.'
40. In view of the evidence of the parties available on the record as also in the light of the aforesaid decision of the Apex Court, the requirement of the suit shops situated on the ground floor of the suit house in the market area of Indore city cannot be considered to be unreasonable. It can be presumed that the shops situated on the ground floor in the market area are more suitable for the purpose of business than the shops situated in the same area on the first floor of the same house. In this respect, it is pertinent to note that in Civil Revision No. 74/99, PW 1 Doulatram. partner of the applicant firm, in his cross-examination was asked that whether he is ready to occupy a shop on the first floor of the house in place of the shops in his occupation he replied that :--
^^eSa] nkfo;k nqdku ds cnys esa mij eafty ijfjDr nqdku fdjk;s ij ugha ysuk pkgrkA**
41. The aforesaid statement of Doulatram also makes it clear that the shops situated on the ground floor of the suit house are more reasonably suitable for the purpose of business than the shops situated on the first floor of the house situated in the same area. From the evidence of the applicants in both the cases, it is not established that the landlords possessed of any shops in their occupation in the market area of Indore on the ground floor for their alleged need. As such, I do not find that the learned RCA has committed any illegality or jurisdictional error in passing the impugned orders of eviction against the applicants under the provisions of Section 23 of the Act.
42. As a result of the foregoing discussion, the two revisions, Civil Rev. No. 316/ 97 and Civil Rev. No. 74/99 filed by the respective applicant-tenants fails and the said revisions accordingly dismissed. The applicant-tenants of the revision cases shall deliver vacant possession of the suit shops in their possession to the non-applicant/ landlords within a period of two months from the date of this order. The order of eviction shall be enforceable on compliance of the provisions of Section 23-G of the Act asdirected by the RCA within the period as indicated above. The parties of both the revisions are left to bear their own costs. Counsel fee Rs. 1,000/- is allowed to each of the parties, if certified.
43. The copy of the order be placed on the record of connected Civil Revn. No. 74/99. Schedule of the cost be drawn up accordingly in the respective revisions.