ABDUL SATTAR KASAMBHAI Vs. KALAWATI DEVI

JUDGEMENT

(1.) THIS is tenants revision under Section 23-E of the Chhattisgarh Accommodation Control Act, 1961 (hereinafter referred to as 'the Act, 1961') against the order of eviction dated 22.10.1997 passed by the Rent Controlling Authority, Raigarh (henceforth the 'R.C.A.') in case No. 3/A-90 (D/92-93. The following facts are not disputed. Smt. Kalawati Devi who initiated the proceedings under Section 23-A of the Act 1961 against Abdul Sattar, the applicant/tenant was the widow of Kanhaiyalal. Shankar Lal is the son of Smt. Kalawati. Hemant is the son of Shankar Lal. The applicant herein is a tenant in the suit accommodation No. 26/1 situated at Street No. 43, Plot No. 168/3, Ward No. 8 in Raigarh (henceforth 'the accommodation') which was let out for non-residential purpose.Kanhaiyalal had instituted Civil Suit No. 79-A/78 before the 1st Civil Judge Class-2, Raigarh for eviction of the applicant herein which was withdrawn on 24.02.1981 by Kanhaiyalal upon a compromise relating to enhancement of rent from Rs. 50/- to Rs. 65/-. In the year 1985, Kanhaiyalal instituted another Civil Suit No. 241-A/1985 (later numbered as Civil Suit No. 90A/ 1990) for eviction of the applicant herein on the ground of bona fide requirement for non-residential purpose. THIS suit (Civil Suit No. 90A/1990) was dismissed on 22.06.90 by 3rd Civil Judge Class-2, Raigarh. No appeal was preferred.

(2.) IT is also not in dispute that upon death of Kanhaiyalal on 3.7.1990, his widow Smt. Kalawati Devi initiated proceedings under Section 23-A of the Act, 1961 for eviction of the applicant/tenant on the ground of bona fide requirement for the purpose of starting business by her major son Shankar Lal. IT is also admitted that Smt. Kalawati had instituted a suit for eviction of one Chandumal from a non-residential premises adjacent to the suit accommodation on the ground of bona fide requirement for non-residential purpose. During the pendency of the suit, Smt. Kalawati sold the tenanted non-residential premises to Chandumal by a registered sale deed. The suit instituted by Smt. Kalawati was subsequently dismissed in default. In the present proceedings, statement of Smt. Kalawati was recorded by the Commissioner appointed by the R.C.A. on 9.10.1994. After cross-examination of Smt. Kalawati by the counsel for the applicant/tenant was completed, counsel for Smt. Kalawati prayed before the Commissioner for re-examination of Smt. Kalawati for clarifying an ambiguity arising in paragraph 12 of her statement that she had no knowledge about the nature of the proceedings before the R.C.A. since it was completely taken care of by her grandson Hemant. An objection raised by the learned Counsel for the applicant was recorded by the Commissioner for being decided by the R.C.A. Subject to this, on being re-examined Smt. Kalawati, stated that the proceedings were initiated on the ground of the requirement not only for herself but also for her son. Learned Counsel for the applicant herein stated that he would not further cross-examine Smt. Kalawati till the objection raised by him before the Commissioner regarding the permission being granted to the counsel for Kalawati to re-examine her was not decided by the R.C.A. This objection was overturned by the R.C.A. on 19.11.1994. The R.C.A. permitted counsel for the applicant herein to re-cross examine Kalawati on the said statement by her. However, Kalawati could not be made available for further cross-examination. Kalawati besides her own statement examined her son Shankar Lal, grandson Hemant and a witness Pradeep Kumar Agrawal in support of her case. The applicant herein examined himself in rebuttal and led no other evidence. On 22.10.1997, the R.C.A. passed the impugned order granting eviction of the applicant herein. The applicant preferred this Revision on 9.12.1997. During pendency of the Revision Smt. Kalawati and Abdul Sattar died and their legal representatives were substituted.

(3.) SHRI R.P. Tripathi, learned Counsel for the applicants herein raised a question of law that on death of Kanhaiyalal, his son Shankar Lal for whose need, the accommodation was sought to be evicted, became a co-owner of the accommodation with Smt. Kalawati, and therefore, where the accommodation was sought to be evicted for the bona fide requirement of co-owner Shankar Lal for starting his business, the proceeding under Section 23-A of the Act, 1961 initiated by Smt. Kalawati was not maintainable and Shankar Lal, the co-owner of the suit accommodation could file a regular suit for eviction of the tenant. This contention deserves rejection at once, in the facts and circumstances of this case. As against the evidence led by Smt. Kalawati Devi that in a mutual partition that suit accommodation had fallen to her share and the house in Bhuji Bhawan Chowk fell to the share of Hemant (ground floor) and Shankar Lal (upper floor) which is wholly unrebutted, the tenant Abdul Sattar has categorically admitted in cross-examination that he never made any effort to find out in whose name the suit shop was recorded. He also did not make any effort to make any enquiry in this regard from the Sales Tax Department or the Shops and Establishment Department. He also admitted that he did not know whether the shop owned by Firm Mangal Chand Kanhaiyalal had fallen to the share of Hemant. He categorically admitted that besides the suit shop, Shankar Lal had no other shop. Thus in the light of the evidence adduced it is established that upon a mutual partition the suit accommodation had fallen to the share of Smt. Kalawati Devi. Being a widow, Smt. Kalawati Devi fell within the definition of landlord under Section 23-J of the Act, 1961 and was competent to file an application under Section 23-A of the Act, 1961 for eviction of the applicant/tenant.