HEALTH STORES Vs. MUSAMAT RAHIMA BAI

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution for a writ of certiorari and challenge is to the order of eviction passed by the Controller and upheld in appeal.

(2.) M/s. Health Stores is a registered partnership firm of which the other petitioners are partners. Opposite Party No. 1 is the landlady of the premises located within the town of Cuttack of which the firm is a monthly tenant. The tenancy began with a rent of Rs. 90/- in the year 1958 which was enhanced to Rs. 120/-and ultimately to Rs. 146/- per month. Opposite party No. 1 started a proceeding under Section 7 of the House Rent Control Act in H, R. C. Case No. 59 of 1976 alleging that the tenancy was for opening of a shop, but the premises was being used as a godown as a result of which the same was being damaged; the land- lady's son wanted to run his own business in the disputed premises and as such the house was required in good faith for occupation of a member of her family. On behalf of the tenant, both the pleas were denied. It was pointed out that the disputed premises was of the size of 28 feet x 12 feet. The firm had already been running a shop in the name and style of M/s. Health Stores on the opposite side of the premises intervened by the municipal road and the tenancy was for the purpose of storing articles to be sold in the shop. There was no deviation in the purpose of the tenancy. It was also pleaded that the landlady's son was a teen-ager continuing studies and there was, therefore, no bona fide in the claim of personal requirement. In the proceedings before the Controller, three witnesses in all were examined on behalf of the landlady and the tenants examined one of them. The landlady did not examine herself. P. W. 1, her husband, and P. W. 2, her son, were, however, examined. The landlady also examined another tenant of hers as P W.3. The Controller by his order dated 29th April 1977, did not accept the landlady's story that the tenanted premises was meant for location of a shop and there was deviation of the agreement in utilising it as a godown. He also did not find any damage to the premises. He, however, accepted the plea of bona fide requirement and directed eviction. The appellate authority sustained the order of eviction by his decision dated 13th of January, 1978. The order of eviction as upheld in appeal is assailed in this application.

(3.) Mr. Mukherjee for the petitioners contends inter alia :--