Indrasen Jain Vs.
Rameshwardas  Insc 778 (17 December 2004)
B. P. Singh & Arun Kumar
Arun Kumar, J.
This appeal is directed against the judgment dated 28th November, 2003 of
the Madhya Pradesh High Court whereby a Civil Revision filed by the respondent-landlord
against the judgment of the Rent Control Authority, Indore was allowed. The
Rent Control Authority, Indore had dismissed the landlord's petition for
eviction filed under Section 23A of the M.P.
Accommodation Control Act, 1961 (hereinafter referred to as 'the Act').
The tenant has filed the present appeal against the judgment of the High
Briefly the facts are: the respondent claiming to be owner of the suit
premises sought eviction of the appellant/tenant therefrom, on the ground of his
personal bonafide need. The suit premises comprises of a shop of the size of
20.8 feet X 10.5 feet besides a small ante-room. The rent of the premises is
Rs.500/- per month. The appellant is a medical practitioner and is carrying on
his practice in the suit premises. The respondent sought eviction of the
appellant on the ground that he required the premises to start his own business
of selling books and stationery. It was pleaded that the landlord did not own
any other premises suitable for business purposes. The eviction petition was
filed under the summary procedure contained in Chapter IIIA of the Act. The
respondent-landlord claims to be a retired Government servant in order to bring
himself within the definition of `landlord' contained in Section 23J of the
Act. The landlords falling within the meaning of landlord in Section 23J are
entitled to avail of the summary procedure for eviction of tenants. The summary
procedure is contained in Chapter IIIA of the Act which was introduced by way
of amendment in 1983 to enable certain categories of landlords to have eviction
proceedings disposed of expeditiously. The relevant provisions of Chapter IIIA
are reproduced as under :
"Section 23-A. Special Provision for eviction of tenant on the ground
of bonafide requirement - 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 a manner provided in Rules 14 and 15 of
Order VI of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908)
as if it were a plaint to the Rent Controlling Authority on one or more of the
following grounds for an order directing the tenant to put the landlord in
possession of the accommodation, namely :- (a).
(b) that the accommodation let for non-residential purposes is required
"bona fide" by the landlord for the purposes of continuing or
starting his business or that of any of his major sons or unmarried daughters,
if he is the owner thereof or for any persons for whose benefit the
accommodation is held and that the landlord or such persons has no other
reasonably suitable non-residential accommodation of his own in his occupation
in the city or town concerned.
Section 23-C. Tenant not entitled to contest except under certain
circumstances.- (1) 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 days from the date of service
of the 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 statement 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 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 aside.
(2) The Rent Controlling Authority shall, within one month of the date of
receipt of application, give to the tenant, if necessary, 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-D. Procedure to be followed by Rent Controlling Authority for
grant of leave to tenant to contest.-(1)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 six months of the order of granting of leave to the tenant to
(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 of a Court of Small Causes including the recording of
evidence under the Provincial Small Causes Courts Act, 1887 (IX 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 of Section 23-A is bonafide.
"Section 23-J. Definition of landlord for the purposes of Chapter III-A
For the purpose of this Chapter 'landlord' means a landlord who is (i) a
retired servant of any Government including a retired member of Defence
Services ; or (ii) a retired servant of a company owned or controlled either by
the Central or State Government ; or (iii) a widow or a divorced wife ; or (iv)
physically handicapped persons; or (v) a servant of any Government including a
member of defence services who, according to his service conditions, is not
entitled to Government accommodation on his posting to a place where he owns a
house or is entitled to such accommodation only on payment of a penal rent on
his posting to such a place." It is the case of the respondent that he
retired as Principal of a private Government aided school on 30th November, 1994. According to him, he was earlier a Government servant and a few years
before his retirement he was sent on deputation to the private Government aided
school as Principal.
As such he continued to be a Government servant till the date of his
retirement. The suit property is said to have been purchased by the respondent
from one Babulal Baheti vide a Sale Deed dated 7th December, 1999. The eviction petition was instituted on 24th May, 2001. Before instituting the eviction
petition the respondent had issued a notice dated 1st February, 2001 calling upon the tenant to vacate the premises.
The eviction petition was contested by the appellant on various grounds.
Relationship of landlord and tenant between the parties was denied. It was also
denied that the respondent was owner of the suit premises. According to the
appellant, the transaction of sale was a sham and fictitious transaction. There
was no proof of payment of sale consideration.
The person from whom the property was allegedly purchased by respondent was
his relation and the purpose of the transaction was to save the property from
the creditors of the previous owner. The tenant also denied the alleged bonafide
need of the respondent with respect to the suit premises. It was denied that
the respondent was a retired Government servant. Further a plea was raised that
the tenanted premises comprised a shop of the size of 20.8 feet X 10.5 feet and
a small ante-room of the size of 6 feet X 8 feet.
The sale deed relied upon by the respondent to establish ownership of the
suit property showed that the respondent had purchased only the shop of the
size 20.8 feet X 10.5 feet and not the ante-room. Therefore, the respondent
could not seek eviction of the tenant from a part of the demised premises.
This amounted to splitting up the tenanted premises which was not
permissible under the law.
We have heard the learned counsel for the parties and gone through the record.
The following points arise for consideration :
(1) Whether the respondent is a retired Government servant so as to fall
within the definition of landlord given in Section 23J of the Act.
(2) Whether the tenanted premises was required bonafide by the respondent-landlord
for the purpose of doing business.
(3) Whether the transaction of purchase of the suit property by the
respondent was sham and fictitious.
(4) Whether it is a case of splitting up of tenanted premises and if so is
splitting permissible ? According to Section 23J, a retired servant of any
Government including a retired member of Defence Services or a retired servant
of a Company owned or controlled either by the Central or State Government is
to be treated as a landlord for purposes of Chapter IIIA of the Act. The
respondent claims that he was in Government service and he retired on 30th November, 1994. In support of his plea that he is a retired Government servant the
respondent has placed on record a statement regarding pension admissible to him
which is Exhibit P.1. In his cross-examination, the landlord admitted that
retired teachers of other private Government aided schools were receiving
pension. In this connection, the following portion of the statement of the
respondent in cross-examination is worth noting :
"It is true that Maheshwari Higher Secondary School is a non-Government
aided institution. It is also true from the grant-in-aid received from the
Government the salaries are paid to its employees and teachers. It is true that
I remained Principal of Maheshwari Higher Secondary School . I was receiving
salary from the grants-in-aid given to the school. It is true that the
Government has also made the entitlement of pension to the employees and
teachers of the grants-in-aid non-governmental institutions".
If retired teachers of private aided schools receive pension they do not
become Government servants merely for that reason. Therefore, production of the
pension slip - Exhibit P.1 alone, does not establish that the respondent is a
retired Government servant. According to respondent he was earlier working in
the Education Department of the State Government and he was sent on deputation
to the Maheshwari Higher Secondary school which was a private Government aided
institution, from where he ultimately retired as a Principal. The best evidence
to establish that the respondent was a Government servant would have been his
letter of appointment as Government servant or the letter by which he was sent
on deputation to the Maheshwari Higher Secondary School. The respondent failed
to produce either of them. The pension slip Ex.P1 is not sufficient to hold
that respondent is a retired Government servant, particularly in view of
respondent's admission in his cross examination that teachers of private
government aided schools receive pension after retirement. Mere receipt of
pension does not make all retired teachers of private schools Government
servants. Therefore, in our view the respondent has failed to establish that he
is a retired Government servant falling within the definition of landlord
contained in Section 23J of the Act.
The High Court failed to notice the statement of the respondent referred to
above. Further the High Court proceeded on the assumption that the tenant had
not contested the point and that no such plea was taken by him in his written
statement. Both the assumptions were incorrect. The approach of the High Court
appears to be totally contrary to record. The Rent Control Authority held that
the respondent does not fall within the definition of landlord contained in
section 23J of the Act. The Authority noted the admission of the
respondent-landlord that teachers working in non- governmental institutions
were also getting pension. It was on this account that the Authority felt that
Ex.P.1, the pension-slip was not sufficient to prove that the respondent was a
Government servant. The teachers working in non-governmental educational
institutions are not Government servants.
The Authority further noted that the best proof of the fact that he is a
retired Government servant would have been his appointment order or the
deputation order. The judgment of the High Court erroneously records that the
tenant had not seriously contested that the landlord was a retired Government
servant. The High Court judgment is based on a wrong hypothesis that no such
plea was taken in the written statement by the tenant.
At two places i.e., in paras 16 and 25 of the written statement, the tenant
has denied that the landlord was a retired Government servant. This renders the
finding of the High Court in this behalf as perverse.
According to the High Court asking for the appointment order or the
deputation order or the retirement order by the Rent Control Authority was
"arbitrary and extravagant." The High Court called the approach of
the Authority in this behalf perverse. In our view, record shows that there is
perversity in the approach of the High Court. The High Court observations are
wholly uncalled for. The Rent Control Authority rightly observed about the need
for production of appointment order or deputation order to prove the point. The
High Court's finding is contrary to the record as well as contrary to law and
as such cannot be sustained. We hold that the respondent landlord has failed to
establish that he is a retired Government servant. Consequently, he does not
fall within the meaning of landlord given in Section 23J of the Act. Therefore,
he could not maintain a petition under Section 23A (b) of the Act. The eviction
petition filed by respondent is liable to be dismissed on this ground alone.
Even on the question of bonafide requirement of the suit premises, the
respondent in our view has no case. In this connection, first aspect worth
noting is that the respondent retired from service on 30th November, 1994.
He purchased the suit property on 7th December, 1999. More than one year
after the alleged purchase of the suit property, he issued a notice of eviction
on 1st February, 2001 and ultimately filed an eviction petition on the ground
of personal requirement for doing business in the shop on 24th May, 2001. If at all the respondent for purposes of keeping himself occupied or by way of
supplementing his income after his retirement, needed to do a business, he
would have felt such a need soon after his retirement in the year 1994. The
suit property was purchased on 7th December, 1999, i.e. about five years after
retirement. Even after 1999, if the respondent thought of starting some
business of his own and purchased a shop for that purpose, he would have
purchased a vacant shop rather than going in for a tenanted premises. This
shows that even in 1999 he had no intention or desire to start a business.
Then even after purchase of the property he waited for more than a year and
issued a notice in February, 2001 and instituted eviction petition in the end
of May, 2001, that is nearly 1 = years after the purchase of the property.
This entire sequence of events does not show any bonafides on the part of
the respondent in setting up a case of bonafide requirement of suit premises.
There is nothing to show how suddenly a need for doing business arose for
the respondent in the year 2001. The Rent Control Authority in view of these
facts doubted the bonafides of the respondent-landlord regarding requirement of
the suit property for doing the business therein. The entire discussion in the
judgment of the Authority on the question of bonafide need seems to suggest
that the Authority was not satisfied with the case of landlord regarding bonafide
need. However, in the concluding line on this issue the Authority observed that
"the applicant bonafide needs the suit shop for starting the business of
books and stationery". This conclusion of the Authority does not fit in
with the discussion or reasoning on the point contained in the judgment of the
Authority. The Authority noted several reasons which showed that there was no bonafide
requirement of respondent.
The High Court simply endorsed the conclusion of the Authority on the point
without going into the question on its own. In our view, the respondent has not
been able to make out a case for bonafide need of the suit premises. His claim
for the suit premises is malafide.
We have expressed our view on the issue of bonafide requirement since the
learned counsel for the parties had spent considerable time over it.
In view of our decision on the first issue about the respondent not being a
retired Government servant and therefore not entitled to file a petition for
eviction under Chapter IIIA of the Act, the eviction petition is not
maintainable and is liable to be dismissed on this ground alone. There is no
need to discuss the other issues. The petition of the Respondent for eviction
of the Appellant is ordered to be dismissed. This appeal is allowed, the impugned
judgment and order of the High Court is set aside, and that of the Rent Control
Authority is restored. No costs.