B.B. Yadu v. Smt. Amita Vaidhya

The facts in brief are that landlady Smt. Amita Vaidya has filed an application under Section 23-A of the Act being widow, falls within the special category of the 'landlord' under Section 23-J (iii) of the Act inter alia contending that she is the owner of the house situated in Mouja Kachhpura, Number Bandobast 501, Patwari Halka No.25, Khasra No.457, Plot No.9, area 2730 sq. ft. whereupon the house on 821 sq. ft. has been constructed and its new number is 55/1, Veer Savarkar Ward, Jabalpur. The said land 2 was purchased by her by a registered sale deed dated 26.07.1989 and thereafter the house was constructed wherein the petitioner is the tenant. After the death of her husband she started to reside in the ancestral house of the in-laws along with her 3 sons who were minor. Now the brother-in-law (Jeth) of the respondent does not want to allow her to stay in the ancestral house. More so, the accommodation is not sufficient looking to the age of 3 sons who are now marriageable. Thus, in the aforesaid circumstances, she requires to get the accommodation in question vacated which is on the tenancy of the petitioner. It is said that the suit house is required bona fide to which no other reasonably suitable accommodation is available to the respondent, therefore, prayed for eviction of the suit house.

3. The petitioner-tenant by filing written statement has denied the plaint allegations and it is averred that the house in which the respondent at present is residing is sufficient to satisfy her need. More so a house was given to her in Kanyadan by her father in marriage which is also available to satisfy their need. In such circumstances on account of having alternative reasonably suitable accommodation the case has been filed on the false pretext because she wants to sale out the suit house. In view of the foregoing, prayer was made to dismiss the application.

4. The RCA after granting leave to defend to the respondent and recording evidence brought on record found that the suit house is bona fide required to satisfy the need of the respondent and her 3 family to which no other reasonably suitable accommodation is available in Jabalpur. It has further been held that partition of the ancestral house has not yet taken place which is not sufficient to satisfy her need. The plea so taken by the petitioner-tenant that the respondent is having another house given to her by father in Kanyadan is also not found proved because no material was brought on record. In view of the foregoing it is held by the RCA that the need of the respondent is bona fide and the eviction has been directed.

5. Shri Mukhtar Ahmad, learned counsel appearing on behalf of the petitioner-tenant contends that the ownership of the house and also of not having reasonably suitable accommodation to satisfy the need is not only required to be pleaded, but it is required to be proved which has not been done by the respondent. In support of the said contention reliance has been placed on a judgment of this Court in the case of Girdharilal v. Ku. Munnibai reported in 1988-II M.P.W.N. (71). In view of the aforesaid it is urged that the application filed by the respondent is not maintainable. It is further urged that the requirement so projected in the application is not bona fide because she is having ancestral house wherein she is residing after the death of her husband. It is also said that a house given to her by father in Kanyadan is also available, therefore, requirement so pleaded is not bona fide. In view of the foregoing, it is prayed that the impugned order passed by the RCA may be set aside. 4

6. Per contra, Shri Ashish Sinha, learned counsel appearing on behalf of the respondent has strenuously urged and contended that the respondent is a widow lady and this fact has not been disputed by the petitioner-tenant in his written statement. In the examination- in-chief the respondent has specifically averred that she is a widow and having 3 sons. The aforesaid fact has not been disputed in the cross-examination. In such circumstances the plea so taken by the respondent of being a widow lady and falls within the special category of 'landlord' under section 23-J (iii) of the Act is not disputed, therefore, the judgment so relied upon by Shri Mukhtar Ahmad, learned counsel appearing on behalf of the petitioner-tenant is having no application in the facts of the present case. It is further contended that after appreciating the evidence of the respondent and other evidence so brought by her and also the evidence of the petitioner-tenant, the RCA rightly recorded the finding of bona fide need of the suit house to which ancestral house wherein she is residing is not sufficient to satisfy the need. It has further been held that no document has been produced by the petitioner-tenant to indicate that any house has been received by the respondent in Kanyadan. In such circumstances the finding so recorded by the RCA to prove the bona fide need and for which no other reasonably suitable accommodation is available is just and proper which do not warrant interference.

7. After hearing learned counsel appearing on behalf of the parties and on perusal of the record I find much substance in the 5 argument of learned counsel appearing on behalf of the respondent. It is apparent from the pleading of the application under Section 23- A of the Act that the respondent is a widow lady. After the death of her husband she started to reside in the ancestral house because her kids were minor and the eldest son was of only 13 years. It has been specifically pleaded and proved by the evidence that now the brother-in-law (Jeth) of the respondent wants that she should not reside along with them. More so it is specifically averred and stated that her sons have now become major and their marriages are to be solemnized, therefore, the accommodation of the ancestral house wherein she is at present residing is not sufficient to satisfy her need, however, prayer is made to direct eviction of the petitioner- tenant from the suit house on account of the genuine need of the respondent. The aforesaid plea could not be demolished by any iota of evidence brought by the respondent on record. The RCA after considering the evidence brought by the petitioner-tenant as well as the respondent rightly recorded a finding that the respondent falls within the special category of the 'landlord' under section 23-J (iii) of the Act being a widow and she is owner of the suit house. It is further apparent that the petitioner is the tenant of the respondent in the suit house. The suit house is required bona fide for her own residence as well as to her three sons who are now of marriageable age and the ancestral house in which she is residing is not reasonably suitable to satisfy the present need. In such circumstances the RCA has rightly recorded a finding directing 6 eviction of the suit house. On perusal of the record and the evidence brought on record it is clear that to satisfy the bona fide need of the respondent no other reasonably suitable accommodation is available in the township of Jabalpur. The plea taken by the tenant that for satisfying the need by ancestral house has rightly been negatived by the RCA and the petitioner-tenant has not filed any document to show that some house has been received by the respondent in Kanyadan. In absence of any material, the finding of fact recorded by the RCA appears to be just and proper which do not warrant interference by this Court. In such circumstances the judgment relied upon by the learned counsel for the petitioner-tenant is of no help to him.

8. In view of the foregoing, in the considered opinion of this Court, the RCA has rightly passed the order directing eviction of the petitioner-tenant from the suit house on the ground of bona fide need of the respondent allowing the application filed by the respondent under Section 23-A of the Act. Consequently, the revision filed by the petitioner/tenant is hereby dismissed. In the facts and circumstances no costs.

9. At this stage, Shri Mukhtar Ahmad, learned counsel appearing on behalf of the petitioner made a request that because the petitioner is a old aged person some time to vacate the suit house may be granted. It is urged that the petitioner shall deliver the peaceful possession and shall continue to deposit monthly rent till vacation of the house if reasonable time to vacate the suit house is 7 allowed. Shri Sinha, learned counsel appearing on behalf of the respondent contends that respondent is also a widow lady, therefore, time may not be granted.

10. After hearing learned counsel appearing on behalf of the parties and looking to the age of the respondent, in the opinion of this Court, for vacation of the suit house as per the order passed by the RCA time till 31st January, 2013 would be reasonable subject to complying the following conditions:- (i) Petitioner-tenant shall furnish an affidavit and undertaking before the RCA, Jabalpur within one month from today to the effect that he shall deliver the peaceful possession of the suit house to the respondent on or before 31st January, 2013. In the affidavit it be also specified that the suit house shall not be sub-let or parted with the possession to any other person during such period. (ii) Petitioner-tenant shall undertake to deposit entire arrears of rent within one month from today if it is not yet deposited and continue to deposit the monthly rent on or before 15th day of every month. (iii) On submission of the affidavit and undertaking, the RCA shall record its satisfaction to grant time for vacation up-to 31st January, 2013 otherwise the respondent shall be at liberty to get the order of eviction executed by the RCA as per law. No cost. ap. (J.K. Maheshwari) JUDGE 8