D.M. Dharmadhikari, J.
1. This is a revision under Section 23-E of the M. P. Accommodation Control Act, 1961 (in short 'the Act), by the tenant. The parties are real brothers. The suit accommodation is house No. 1486 Napier Town, Jabalpur and is a residential accommodation.
2. The admitted facts are that the applicant retired from government service in April, 1983. By a deed of gift executed on 30-8-1983, the suit accommodation was acquired by transfer by the non-applicant landlord from his mother. The present application for eviction was filed before the Rent Controlling Authority (in short 'the Authority') on 5-9-1984. The need set up was bona fide need for residence. Another tenanted portion adjoining the suit accommodation was occupied by other tenant (called portion of Sarkar) against whom also the present landlord filed proceedings for eviction and in fact obtained a decree.
3. The counsel appearing for the tenant before me firstly submitted that the application at the instance of the present landlord was not competent before the Authority because he did not fall in the category of specified landlord under Section 23-J of the Act. Explaining the above submission, the learned counsel for the tenant submitted that this was admittedly a case where the accommodation was acquired by the landlord after retirement from government service. Such a landlord is not covered by the definition of landlord under Section 23-J of the Act. Reliance was placed by the learned counsel for the tenant on the Division Bench decision reported in, 1985 MPLJ 657 : AIR 1986 MP 72, B. Johnson Bernard v. C.S. Naidu (1), which has considered the case in Mr.s Winifred Ross v. Mrs. Ivy Fonsee(2), AIR 1984 SC 458. Reliance has also been placed on a decision of learned single Judge of this Court, K.L. Shrivastava J. reported in Badriprasad v. Chimanlal 1987 MPRCJ 66, which has been reconsidered by learned single Judge, Dr. T.N. Singh, J. in Madanlal v. Mitthulal Sharma 1987 MPLJ 695, Placing reliance on the aforesaid decisions the learned counsel contended that in respect of retired government servants, restricted meaning has been given to the definition of 'specified landlord under Section 23-J of the Act, keeping in view the aims and objects of the Amendment Act, whereby special speedy remedy of eviction is provided to such retired government servants who already own the accommodation as landlord on the date of their retirement and genuinely require the same for their occupation after their retirement.
4. On the basis of the above decisions, the counsel for the tenant contended that the Division Bench decision in the case of B. Johnson Bernard 1985 MPLJ 675 (supra) is a binding precedent holding that the remedy of eviction through the Rent Controlling Authority is not available to a retired government servant who subsequently acquires the accommodation as landlord by transfer and is not covered by the provisions contained in Section 23-J of the Act.
5. Replying to the above contention on the first submission, learned counsel for the landlord invited my attention to the decision of another learned single Judge of this Court, namely, K.M. Agarwal, J. in Virangana Laxmi Bai Gurukul v. Brijendra Narayan Saxena, 1983 MPRCJ 178 (1), which according to me considers the Division Bench case as also the Supreme Court, case, cited above and takes a correct view holding that even such a landlord who is a retired government servant and acquires accommodation after his retirement by transfer is included in the definition u/ Section 23-J of the Act so as to enable him to approach the Rent Controlling Authority for eviction. Learned counsel for the landlord has also brought to my notice unreported decision of S. Awasthy J. in H.W. Hemilton v. Albert Joseph C. R. No. 206 of 1988 decided on 25-1-1989 (2) and the other decision by B.M. Lal J. in Sunil Kumar David v. K.R. Naidu C. R. No. 151 of 1988 decided on 5-7-1989 (3), which support the contentions of the learned counsel for the landlord regarding tenability of the present application for eviction before the Rent Controlling Authority.
6. Having gone through the aforesaid decisions cited by the parties and having considered the provisions contained in Section 23-J of the Act, I am of the view that in the category of' specified landlords', even retired government servants acquiring accommodation by transfer subsequently on their retirement are covered for the purpose of availing the remedy before the Rent Controlling Authority for eviction, contained in Chapter III of the Act. I am fortified in my view by the decisions of three learned single Judges of this Court, a decision of one of whom (K.M. Agarwal J.) has been referred to by me above. The aforesaid view taken by K. M. Agarwal J. is borne out from the provisions contained in proviso to Section 23-A under Chapter III of the Act, which reads as under:
"Provided that where a person who is a landlord has acquired any accommodation or any interest therein by transfer, no application for eviction of tenant of such accommodation shall be maintained at the instance of such person unless a period of one year has elapsed from the date of such acquisition."
Reading the above proviso in Section 23-A along with the definition clause of 'landlord' under Section 23-J of the Act, and to give both the provisions an effect and meaning, it will have to be held, on the settled principle of reasonable construction of statute, so as to fulfil the aims and objects of the Act, that all specified categories of landlords are entitled to resort to summary remedy of eviction through the Rent Controlling Authority, even in cases of accommodation which they have acquired by transfer, with only a rider that a period of one year should elapse for seeking eviction from the date of such acquisition.
7. I am not prepared to accept that the decision in the case of B. Johnson Bernard 1985 MPLJ 675 (supra) finally concludes the above legal question in favour of the tenant. The following observations contained in para 14 of the Division Bench case in B. Johnson Bernard 1985 MPLJ 675 (supra) which places reliance on the decision of the Supreme Court in Mrs. Winifred Ross, AIR 1984 SC 458 (supra), may be seen :--
"14. An incidental argument advanced in connection with classification of landlords may also be mentioned. It was urged that a retired servant of the Government etc. acquiring a house after his retirement and inducting a tenant thereafter may also claim to be within the ambit of Clause (i) or (ii) of Section 23-J, as the case may be. It was argued that acquisition of a house after retirement does not justify his classification under this head. This point need not detain us since the answer is given by the Supreme Court in Winifred Ross v. Fonseea. A similar provision in the Bombay Act was read down as conferring benefit only on those retired persons who were landlords while in service and avail the benefit after retirement in respect of a tanancy subsisting during his service. Section 25-J of the M. P. Act has to be construed accordingly and then there is no discrimination."
The above observations of the Division bench had to be understood in the light of ratio of the Supreme Court case which turned on the provisions of Bombay Act which were in pari materia with the provisions contained in Section 20-AA of the M. P. Act (now repealed). The question of the effect of proviso to Section 23-A of the present Act never came for consideration either before the Division Bench (supra) or the Supreme Court in the case of Mrs. Winifred Ross (supra). It may be also be noted that the Division Bnch had only incidentally commented on that question which cannot be taken to be a binding precedent in the absence of any consideration having been bestowed by the Division Bench in respect of the effect of the proviso to Section 23-A of the Act. I find myself in respectful agreement with the opinion expressed by learned single Judge K.M. Agarwal J. in Virangana Laxmi Bai GurukuPs case 1985 MPRCJ 178 (supra) as also the decision of other single Judges S. Awasthy J. and B. M. Lal J. in the decisions mentioned above. So far as the decision of learned single Judge K. L. Shrivastava J. is concerned, the matter went in special leave petition to the Supreme Court and the question was left open for decision at the final stage of the case. This fact has been noted by learned single Judge Dr. T.N. Singh, J. in his decision cited above. Dr. T.N. Singh J. has also not decided the question of interpretation of Section 23-J and has remanded the matter to the Authority for decision.
8. In view of the facts stated above, the view expressed by learned single Judges Dr. T.N.Singh J. and K.L. Shrivastava J. do not lay down any binding law. Keeping in view the discussion aforesaid on the first submission, the objection raised by the tenant to the tenability of eviction proceedings before the Rent Controlling Authority has no force and is, therefore, rejected.
9. The second submission of the learned counsel for the tenant was regarding the finding reached by the Authority in favour of the tenant on the question of bona fide need for residence. The learned counsel invited my attention to the application made by the tenant under Order 41 Rule 27 of the Code of Civil Procedure (is short 'the Code"), for bringing on record a subsequent event that the landlord has already obtained a decree in respect of the adjoining accommodation (described as portion of Sarkar). On the basis of this subsequent event, it is contended before me that the need of the landlord is duly satisfied after he obtained a decree and possession of the adjoining accommodation. The non-applicant landlord has opposed the application for taking note of subsequent event. It has been explained to me by the learned counsel that the suit portion is only small portion of the whole accommodation sought to be evicted by the landlord. My attention has been invited to the map of the house filed along with the application for eviction which consists of only a room and a Verandah and is situate on the West side of the accommodation facing road. It is also pointed out to me that it abuts and is inter connected with the portion of Sarkar, in respect of which decree has been obtained by the landlord. It is also pointed out to me that the landlord desired to obtain the whole accommodation including the said portion and, therefore, eviction proceedings were simulataneously instituted in respect of the whole portion falling on the Southern side of the house facing the public road. The question of subsequent event is a mixed question of law and fact and would require a retrial by remand of the case. Even if I accept the case of the tenant that the landlord has obtained a decree in respect of the adjoining accommodation, I cannot deny him the decree for the present accommodation, if he has been able to establish his need for the whole accommodation, including the one one in respect of which he has already obtained a decree. I cannot lose sight of the fact that under the provisions of Chapter III-A of the Act, there is a presumption contained in Sub-section (3) of Section 23-D of the Act in favour of the landlord of existence of bona fide need and the tenant is required to rebut that presumption by evidence and preponderance of probabilities. In the case before me the tenant did enter the witness box in support of his defence, but in spite of repeated opportunities having been granted by the Authority, failed to turn up for cross-examination by the landlord. In the aforesaid situation it cannot be said that the presumption in favour of the landlord in Subsection (3) of Section 23-D of the Act has been rebutted by the tenant. Fault or error can, therefore, be found with the finding of the Authority on the existence of bona fide need of the suit accommodation in favour of the landlord.
10. As both the contentions raised by the tenant have failed, the revision is hereby dismissed. Under the circumstances of the case I, however, leave the parties to bear their own costs.