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CASE NO.: Appeal (civil)  5991 of 2004

PETITIONER: Indrasen Jain

RESPONDENT: Rameshwardas

DATE OF JUDGMENT: 17/12/2004

BENCH: B. P. Singh & Arun Kumar

JUDGMENT: JUDGMENT

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  Court.

       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 :-

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(a)\005\005\005\005\005\005\005\005\005\005\005.

(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.

Provided that\005\005\005\005\005\005\005\005..".

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-A.

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  contest application.

(2)     The Rent Controlling Authority shall, while holding an  enquiry in a proceeding to which this Chapter applies,  follow as far as practicable, the practice and procedure  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

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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 \026 For the purpose of this Chapter  ’landlord’ means a landlord who is \026

(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

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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 ?

WHETHER THE RESPONDENT IS A RETIRED GOVERNMENT  SERVANT :          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

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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

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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.