SIVENDRANATH SINHA Vs. ARTATRANA MOHANTY

JUDGEMENT

(1.) The landlord, a retired Chief Engineer, is the petitioner assailing the order of the appellate authority under the Orissa House Rent Control Act affirming the decision of the Controller and rejecting petitioner's application for eviction of the tenant from the premises in question. The tenant is a practising advocate of this Court. This litigation has a chequered career and is in this Court for the third time.

(2.) Admittedly, the petitioner is the owner of the premises in question and while he was continuing in service had inducted opposite party No. 1 as a tenant in respect of the ground floor of the building. After the retirement of the petitioner from service, as the first floor of the building which was under the possession of the petitioner became insufficient, he requested the tenant-opposite party No. 1 to vacate the premises in question and having failed in his attempt to get the ground floor vacated through persuasion had to knock the doors of the House Rent Controller by filing an application under S.7 of the Orissa House Rent Control Act alleging that the tenant has incurred the liability of being evicted under S. 7(2)(i) being a wilful defaulter in payment of rent as well as the tenant is liable to be evicted as the landlord requires the house in good faith for his own occupation under S. 7(4) of the Act. The Controller by his order dated 18-12-1982 came to hold that neither the tenant has committed any default in making the payment of rent, nor the landlord has been able to establish his bona fide requirement of the house in question and accordingly dismissed the application of the landlord which order has been annexed as Annexure-4 to the writ application. Being aggrieved by the said order, the landlord filed an appeal which was registered as H.R.C. Appeal No. 7 of 1983 and that appeal was allowed by order dated 7-8-1984 on a finding that the landlord requires the premises in question bona fide for his own use. So far as the plea of wilful default is concerned, the appellate authority, however, affirmed the finding of the Controller and held that there has been no wilful default by the tenant in payment of rent. Against the aforesaid order, the tenant approached this Court in O.J.C. No. 2291 of 1984. This Court came to the conclusion that the appellate authority had not borne in mind the decision of the Supreme Court in the case of Hameedia Hardware Stores v. B. Mohanlal Sowcar, AIR 1988 SC 1060, while deciding the question of bona fide requirement and since rent control law has been enacted for the purpose of giving protection to tenants against unreasonable eviction and for the purpose of ensuring equitable distribution of buildings amongst persons who are in need of them, the mere wish of the landlord cannot be held to be sufficient and it must be examined and found out whether the need is genuine and bona fide. An objective test has to be applied and it is for the landlord to establish that his need is genuine and for his use. Since this Court came to the conclusion that the appellate authority has not examined the problem from proper perspective, the order of the appellate authority was set aside and the matter was remitted back to the appellate authority. The judgment of this Court in O.J.C. No. 2291 of 1984 has since been reported in (1989) 68 C.I.T. 618 (Artatrana Mohanty v. Sibendranath Sinha and others). After the matter went back on remand, the landlord-petitioner filed an application on 1-7-1989 under 0.41, R.27, Code of Civil Procedure, for adducing additional evidence to the effect that in the meantime, the landlord has undergone a by-pass surgery and the necessary certificate of the doctor as well as his advice should be taken into account. The tenant-opposite party vehemently objected to the application for additional evidence and finally the appellate authority dismissed the appeal by his order dated 15-7-1989, annexed as Annexure-7. The landlord then moved this Court in O.J.C. No. 3854 of 1989 and this Court disposed of the writ petition by its judgment dated 30th of October, 1991, coming to the conclusion that the landlord requires the house for his own use and bona fide and the Controller as well as the appellate authority committed error in coming to a finding to the contrary. This Court accordingly passed an order of eviction of the tenant. Against the aforesaid judgment of this Court, the tenant went to the Supreme Court in S.L.P. (Civil) No. 6112 of 1992 which was registered as Civil Appeal after leave being granted, being Civil Appeal No. 3827 of 1992. The Supreme Court came to the conclusion that the High Court was not justified to examine the evidence and circumstnaces and decide the issue of bona fide requirement on merits as the High Court is not entitled to decide the issue of fact by re-consideration of the evidence. But their Lordships of the Supreme Court did not finally decide the matter and remanded the matter to this Court by setting aside the earlier judgment with a direction that the writ application should be disposed of afresh and that is how the matter has been placed again before us.

(3.) Mr. P. K. Misra, the learned counsel for the petitioner, argues with vehemence that the conclusion of the appellate authority constitutes an error apparent on the order as he has committed several errors of record which have a vital bearing in adjudicating the question whether the landlord requires the house bona fide for his own use and such error has vitiated the ultimate conclusion. According to Mr. Misra even though the landlord has given positive evidence to the effect that the rooms in his occupation are not sufficient to accommodate the excess furnitures and other articles, but the appellate authority proceeds on the assumption with no evidence was adduced to establish the said fact. He further contends that without considering the size of the rooms and the available space for the landlord to store his articles, the conclusion of the appellate authority that there were number of rooms in the occupation of the landlord both in the ground floor and first floor for storing and placing the furnitures is a conclusion based upon non-consideration of the relevant materials and, therefore, the said conclusion can be interfered with by this Court in a writ of certiorari. Mr. Misra further contends that the plea of the landlord that he requires additional space for his consultancy work which he is not able to pursue on account of shortage of space has been negatived on the ground that there is an admission on the part of the landlord (P. W. 1) that the consultancy work is sparingly done and no space is required for the same since it can be done with the available datas collected by the landlord in his own house. According to Mr. Misra the appellate authority committed gross error of law in coming to this conclusion, inasmuch as for any professional work, the necessary infrastructure is the minimum decent space being appropriately furnished and, therefore, the, conclusion of the appellate authority is based rather on surmises and not on appreciation of the evidence. Mr. Misra also urges that the plea off the landlord that he requires the additional space for the visit of his son and daughter-in-law who are away in the United States has been rejected by the appellate authority on the ground that since admittedly, the landlord has three rooms under his occupation, his son and daughter-in-law in the event of their visit can occupy any such room and this approach, according to Mr. Misra, is contrary to law. Lastly, Mr. Misra contends that an application for additional evidence on the ground of landlord having undergone bypass surgery has been illegally rejected since S. 13 of the Orissa House Rent Control Act not only authorises the appellate authority to examine the records of the case by calling for the same from the Controller, but also entitles him to make such further enquiry as he thinks fit, which power includes even taking of oral evidence by the appellate authority in appropriate case and, therefore, the application for additional evidence indicating illness of the landlord and the advice of the doctor was illegally excluded from consideration and such erroneous exclusion vitiates the ultimate decision. Mr. B. K. Mohanty appearing for the tenant-opposite party No. 1 has submitted an elaborate written notes of submissions wherein the main contention urged is that the plea of bona fide requirement having been rejected by the Controller and confirmed by the appellate authority, it is not open for this Court in a writ of certiorari to interfere with the said conclusion, particularly when, the appellate authority has fully discussed the entire materials on record. According to Mr. Mohanty, the expression "requires the house in good faith" implies an honest intention on the part of the landlord and the fact that the landlord himself had concealed the actual number of rooms in his occupation itself is sufficient to hold that the requirement is not bona fide. He has relied upon a large number of decisions of the Supreme Court and of this Court indicating the parameters within which the High Court can in a writ of certiorari interfere with the conclusions of an inferior tribunal.