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Chinta Narayanamma v. Kholli Sahu And Others Opposite Parties.
Structured Summary of the Opinion (Behera, J.)
Factual and Procedural Background
The petitioner filed an application under the Orissa House Rent Control Act, 1967 seeking eviction of opposite party No. 1. The tenancy began on 25-1-1963 at Rs. 35 per month, later enhanced to Rs. 45. The petitioner alleged that the tenant (opposite party No. 1) became irregular in rent payments and since October 1975 had wilfully defaulted. The petitioner also alleged she needed the tenanted house for bona fide occupation because she intended to shift into it and sell her present house to discharge a loan of Rs. 35,000 obtained from the Orissa State Financial Corporation. Additional allegations were that the tenant was using the premises as a godown, causing damage, and that a commercially-situated higher rent (Rs. 250) was justified.
The House Rent Controller (opposite party No. 2) heard evidence from both sides and rejected the petitioner's claim, holding that the petitioner did not have a bona fide requirement and that the tenant was not a wilful defaulter; the Controller did, however, enhance the rent to Rs. 100. Both parties appealed to the Chief Judicial Magistrate (opposite party No. 3), who dismissed the appeals and affirmed the findings. The petitioner then challenged the original and appellate orders by way of an application under Articles 226 and 227 of the Constitution, asking this Court to quash the two orders and direct eviction of the tenant.
Legal Issues Presented
- Whether the findings of the House Rent Controller and the Chief Judicial Magistrate that the tenant was not a wilful defaulter are unreasonable or perverse and therefore susceptible to interference in writ jurisdiction.
- Whether the petitioner had shown a bona fide requirement of the tenanted house (within the meaning of Section 7 of the Orissa House Rent Control Act, 1967) to justify eviction.
- Whether concurrent findings of fact by the statutory authorities can be interfered with by this Court under Articles 226 and 227, given the facts and evidence on the record.
Arguments of the Parties
Petitioner's Arguments
- The findings of the House Rent Controller and the Chief Judicial Magistrate that the tenant was not a wilful defaulter and that the petitioner did not require the tenanted house bona fide are unreasonable and perverse.
- The petitioner sought eviction on the ground of bona fide requirement (to shift into the tenanted house and sell her present house to repay an Orissa State Financial Corporation loan of Rs. 35,000) and for default in rent and alleged misuse of the premises as a godown.
Opposite Party No. 1's Arguments
- The impugned orders are reasonable and well-founded and should not be interfered with by the Court exercising extraordinary jurisdiction.
- The tenant produced evidence (including documents marked Ext. J and Ext. K and a savings account showing deposit of rent) to show that he was not a wilful defaulter and that payments had been attempted or made.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Babu v. Deputy Director Of Consolidation ((1981) 4 SCC 246 : AIR 1982 SC 756) | Concurrent findings of fact by statutory authorities are not open to challenge in writ jurisdiction unless they are perverse or based on no evidence. | The Court relied on this principle to decline interference with the concurrent factual findings of the Controller and the Chief Judicial Magistrate that the tenant was not a wilful defaulter and that the petitioner had no bona fide requirement, concluding those findings were supported by evidence and not perverse. |
| Nanalal Goverdhandas & Co. v. Smt. Samratbai Lilachand Shah (AIR 1981 Bom 1) | When claiming bona fide requirement by a landlord, the landlord's own evidence is crucial; a landlord's testimony cannot be delegated to another (e.g., power-of-attorney) for proving the state of mind and necessity. | The Court adopted the Bombay High Court's observations to justify drawing an adverse inference against the petitioner for failing to appear and give evidence herself; this supported the finding that the petitioner had not established a bona fide requirement of the tenanted house. |
Court's Reasoning and Analysis
The Court proceeded in stages, applying statutory provisions and established principles from precedent to the facts and materials on record:
- Standard of interference: The Court began by recalling the settled principle (cited in Babu v. Deputy Director Of Consolidation) that concurrent findings of fact by statutory authorities are not to be disturbed in writ jurisdiction unless they are perverse or based on no evidence. This set a high threshold for the petitioner's challenge.
- Evaluation of the wilful default allegation: The Controller and the appellate authority found that the tenant was not a wilful defaulter. The Court reviewed the documentary evidence relied upon by the tenant: Ext. J (a postal money order of Rs. 180 dated 27-2-1976, tendered as rent for the period 23-10-1975 to 28-2-1976 and asserted to have been refused by the petitioner) and Ext. K (a Canara Bank savings account showing subsequent deposits of rent). The Court noted that although the bank account was opened on 29-6-1977 after the institution of the case, that fact alone did not warrant a conclusion of wilful default. Given these materials and the reasons recorded by both authorities, the Court found no basis to characterize the concurrent findings as perverse or unsupported by evidence.
- Bona fide requirement under the Act: The Court analyzed Section 7 of the Orissa House Rent Control Act, 1967, which allows eviction if the landlord requires the house in good faith for personal/family occupation. The Court emphasized that "requires" implies need, that the onus is on the landlord to prove necessity, and that the requirement must be honest and not the result of an oblique motive or false pretence.
- Application of evidence to bona fide claim: On the record, both the Controller and the Chief Judicial Magistrate found insufficient cogent material that the petitioner had in fact incurred the loan and needed to sell her present house to discharge it so as to necessitate occupation of the tenanted house. The claimed reason relating to the family deity and performance of the granddaughter's marriage in the tenanted house was disbelieved; evidence showed other grand-daughters' marriages had been performed in the petitioner's current residential house.
- Adverse inference for non-examination: Both authorities drew an adverse inference from the petitioner's deliberate decision not to testify herself (either before the Controller or by commission), despite being the best person to depose about her bona fide requirement. The Court approved this approach and expressly relied on the Bombay High Court's reasoning in Nanalal Goverdhandas to hold that the landlord's own testimony is essential and cannot be supplanted by a proxy, such as a grandson or attorney.
- Conclusion on reasonableness: Taking the totality of the evidence and the concurrent findings that were supported by cogent reasons, the Court concluded the impugned orders were neither unreasonable nor perverse and therefore did not warrant interference under Articles 226 and 227.
Holding and Implications
Holding: The Court dismissed the petitioner's application. The disposition given in the judgment is succinctly captured by the Court's order:
Application dismissed.
The Court made no order as to costs.
Immediate consequences: The orders of the House Rent Controller and the Chief Judicial Magistrate (Annexures 1 and 2) stand; the tenant is not evicted on the contested grounds and the enhancement of rent to Rs. 100 remains in place as determined by the Controller. The Court's decision rests on affirmation of concurrent factual findings and the absence of perverse or no-evidence findings; the opinion does not purport to lay down any novel legal principle beyond applying established authorities to the facts.
Note: This summary is limited to information expressly contained in the provided opinion and does not add or infer facts beyond the text.
Behera, J.:— Challenge in this application under Arts. 226 and 227 of the Constitution is to the original and appellate orders (Annexures 1’ and 2) passed by the House Rent Controller and the Chief Judicial Magistrate, rejecting the application of the petitioner under the Orissa House Rent Control Act, 1967 (Act 4 of 1968) (hereinafter referred to as the Act) and dismissing her claim for eviction of the opposite party No. 1 on the grounds (a) that the opposite party No. 1 was a wilful defaulter in the payment of rent and (b) the house in occupation of the opposite party No. 1 was required for the bona fide requirement of the petitioner. The petitioner seeks a direction from this Court for the eviction of the opposite party No. 1 after quashing Annexures 1 and 2.
2. The petitioner had inducted the opposite party No. 1 as a tenant from 25-1-1963 on a monthly rent of Rs. 35/- which later was enhanced to Rs. 45/- per month. The opposite party No. 1, it was alleged, was irregular in the payment of rent and since October, 1975, wilfully defaulted in the payment of rent. The other ground for the eviction of the opposite party No. 1 was that the petitioner intended to shift to the house in occupation of the opposite party No. 1 as she wanted to sell the present house under her occupation to discharge a loan amount of Rs. 35,000/- incurred by her, her grandson and others from the Orissa State Financial Corporation. The petitioner had also alleged that the opposite party No. 1 had taken the house for residential purpose on rent, but had used the same as his godown causing damages to the house. She had also claimed higher rent at the rate of Rs. 250/- per month as the house in question was in a commercial and business locality. All the grounds had been controverted by the opposite party No. 1 before the House Rent Controller (opposite party No. 2). Both the sides produced evidence before the opposite party No. 2 who, on a consideration of the materials placed before him, held that the petitioner had no bona fide requirement of the tenanted house and that the opposite party No. 1 was not a wilful defaulter. It was also held that the opposite party No. 1 had not been using the tenanted house as a godown nor had any damage been caused to that house. The rent was, however, increased to Rs. 100/-. Both the sides unsuccessfully appealed before the Chief Judicial Magistrate, Berhampur (opposite party No. 3), the petitioner challenging the findings of the opposite party No. 2 against her and the opposite party No. 1 challening the enhancement of rent against him.
3. Mr. Y.S.N Murty, the learned counsel for the petitioner, has submitted that the findings arrived at by the opposite party Nos. 2 and 3 with regard to the wilful default of the opposite party No. 1’ and the bona fide requirement of the tenanted house of the petitioner are unreasonable and perverse. Mr. B. Mohanty, the learned counsel for the opposite party No. 1, has, however, submitted that the impugned orders are reasons able and well-founded and would not call for interference by this Court in its extraordinary jurisdiction.
4. Concurrent findings of fact of the statutory authorities giving cogent reasons therefor are not open to challenge in writ jurisdiction unless the findings are perverse or based on no evidence (See Babu v. Deputy Director Of Consolidation (1981) 4 SCC 246 : (AIR 1982 SC 756)). Both the opposite parties Nos. 2 and 3 have, for clear and good reasons, held as a fact that the opposite party No. 1 was not a wilful defaulter and accepted his case that the practice was that the petitioner used to collect rent from the opposite party No. 1 and as since October, 1975, no collection was made from him, he waited for some time and then remitted Rs. 180/- by postal money order on 27-2-1976 being the rent from 23-10-1975 to 28-2-1976 which was refused by the petitioner, evidenced by Ext. J. It would appear from Ext. K, the savings bank account with the Canara Bank, that the opposite party No. 1 then went on depositing the house rent in this account. True, this account had been opened on 29-6-1977 after the institution of the casa under the Act, but this circumstance, by itself, would not warrant a conclusion that the opposite party No. 1 had been a wilful defaulter. Both the original and the appellate authorities have come to a concurrent finding in this regard against the petitioner and we see no justifiable ground to hold that this finding is based on no evidence or that this finding is perverse.
5. Section 7 of the Act provides that if the landlord requires the house in good faith for the occupation or use of himself, any member of his family or of any person or persons for whose benefit the house is held by him, he may, subject to the provisions of the Act, apply to the Controller for an order directing the tenant to put him in possession of the house. The word “requires” involves some element of need and the onus is on the landlord to show fact and circumstances proving the necessity which must be an honest one. It should not be the outcome of an oblique motive or a false pretence. On a consideration of the materials before them, the opposite party Nos. 2 and 3 have concurrently found that there was no clear and cogent material on the record that the petitioner had incurred the loan from the Orissa State Financial Corporation and had to discharge the debt for which sale of the house at present in her occupation was necessary and that, therefore, she required the tenanted house for her own occupation. The other ground that as the family deity was in the tenanted house, the marriage of the grand-daughter of the petitioner was to be performed in that house had not been accepted by both the authorities and in our view, rightly so, in view of the fact that the marriage of the other grand-daughters had been performed in the house presently under the occupation of the petitioner, PW 3, the grandson of the petitioner, had testified about this necessity, but had admitted that the marriages of his other sisters had been performed in the present residential house of the petitioner. Both the authorities had drawn adverse inference for the non-examination of the petitioner herself as a witness either by appearing before the opposite party No. 2 or by making an application to be examined on commission. The petitioner would be the best person to testify about her bona fide requirement. Instead of examining herself, the petitioner chose to examine PW 3, her grandson on her behalf and PW 3 was said to be the power-of-attorney holder of the petitioner. Both the authorities have held that the petitioner had deliberately avoided to be examined to substantiate her case. In a case of this nature, involving the question of bona fide requirement of the house in good faith, the examination of the petitioner would be necessary and in this connection, reference may be made to the observations of the Bombay High Court in the case of Nanalal Goverdhandas & Co. v. Smt. Samratbai Lilachand Shah, AIR 1981 Bom 1. Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) provides that the premises must be reasonably and bona fide required by the landlord. The landlady in that case had not been examined and Ramanlal, her son, who was said to be her constituted attorney, was examined on her behalf. It was observed and held thus (at p. 8);
“22. ……It may be the requirement for somebody else but not by somebody else. In all cases the requirement must be by the landlord himself. It is also implicit in the above propositions which have emerged from the examination of the various cases that there must be a nexus between the interests of the landlord and the occupation of the premises by himself or by somebody else. If there is no nexus of the interests of the landlord with the occupation of the premises, then the condition mentioned in S. 13(1)(g) cannot be said to have been fulfilled. Section 13(1)(g) says that the premises must be reasonably and bona fide required by the landlord. The bona fide requirement is in the first place a state of mind though it may be something more. It must, therefore, be deposed to by the person who is requiring the premises under S. 13(1)(g) namely, the landlord. If the landlord does not step into the witness-box to bring before the Court legal evidence for proving his requirement, then it cannot be said that he reasonably and bona fide requires the premises as mentioned in S. 13(1)(g). The landlord can delegate the authority to conduct a case but he cannot delegate the duty to depose.
23. While examining the rival contentions of the parties, I have mentioned in sufficient detail the evidence that has come on record in this case. However, it would be useful if I enumerate again the facts which have been established. The respondent, who is the landlady, has not been examined in support of her case nor has she been examined as a witness on commission. On this ground alone the suit of the respondent ought to have been dismissed because the bona fide requirement which, as I have mentioned above, is a state of mind and something more must be proved in this case. Ramanlal, the respondent's son, is said to be her constituted attorney but that could only be for the purpose of conducting the case but his evidence cannot be substituted for the legal evidence of the landlady herself.”
In our view, the learned Judge of the Bombay High Court has correctly laid down the law and the opposite parties Nos. 2 and 3 were justified in drawing adverse inference against the petitioner for not examining herself as a witness.
6. We thus find that the impugned orders cannot be said to be unreasonable or perverse calling for interference by this Court. We would accordingly dismiss the application, but in the circumstances of the case, make no order as to costs.
R.N Misra, C.J:— I agree.
Application dismissed.
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