1. This is a revision under Section 23-E(2) of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter called 'the Act') against the order dated 26-6-1993 of dismissal of the application for eviction, passed by the Rent Controlling Authority (Sub-Divisional Officer) Dhamtari (for short RCA)in Rev. Case No. 124/90/8/1991-92.
2. Facts giving rise to this revision are thus-- The petitioner admittedly is the landlady of the non-residential accommodation, the suit shop, situated in front of old Bus-stand, Dhamtari, area 6 x 15 feet of which respondent is a tenant on a monthly rent of Rs. 150/- per month. The petitioner filed an application under Section 23-A(b) of the Act for seeking eviction of the suit shop on bona fide requirement, for her son for the purpose of starting his own business of motor cycle scooter repairing. The petitioner's son is a Mechanic and. since last five years, working on a meagre pay of Rs. 500/- per month at Arun Jain Scooter House. The petitioner claimed eviction as a widow falling in specified category of Clause (iii) of Section 23-J of the Act, who had no other reasonably suitable non-residential accommodation of her own in her occupation in the city of Dhamtari. After issue of summons of the application to the respondent tenant, within 15 days from the date of the service of summons, the respondent filed an application supported by an affidavit to seek leave to contest the application for eviction as required by Section 23-C(1) of the Act, which was granted. On the pleas taken in the written statement, the RCA framed following issues :
(A) Whether the petitioner is a widow and for this reason she falls within the specified category of landlord as defined in Section 23-J?
(B) Whether the petitioner requires the suit shop bona fide?
3. During the enquiry, the petitioner in her statement admitted that her husband left and deserted her when her son was 3 years of age. She is not aware whether her husband, who was resident of village Dargahan is dead or alive. In cross-examination, she admitted that her husband Dhursingh absconded of which she lodged a report. In the records of the Municipal Corporation in the ownership register, her name is recorded not as a wife of her husband but as daughter of her father. She cannot say whether her husband is dead or alive. But she is confident that her husband Dhursingh is alive. She belongs to the area of Chhattisgarh and belongs to Lohar caste, where if a lady is widow, she does not wear bangles and wear white saree, whereas in Court she has come wearing green bangles and coloured saree. In last paragraph of her cross-examination, she admitted that her husband has divorced her by custom of Chod Chutti and has left her. She cannot say whether her husband has remarried or not. On bona fide requirement, the petitioner, in her cross-examination, stated that she has sold one shop prior to the institution of the proceedings, to her tenant who was running a Grocery Shop in the name of 'Jhulelal Stores'. She also stated that during the pendency of the applications a Gali (Strip) adjacent to the suit shop, a space of the area of 3 x 10 feet in a shope of shop, has been rented out to other tenant, as was not suitable for starting the business of scooter repair by her son, who is an expert mechanic who could not have carried on the work of repairs in that small room. The petitioner also examined her son on bona fide requirement, who stated that the suit shop is on the roadside and is reasonably suitable for starting his business.
4. To rebut the evidence, the respondent examined himself and one witness Kishunlal and stated that the requirement was not bona fide but was with an oblique motive to enhance the rent because the petitioner, in her own statement in cross-examination, has also admitted that the respondent is paying low rent and she wants eviction for starting the business of scooter repairing by her son.
5. The RCA after raising presumption under Section 108 of the Evidence Act about the husband of the petitioner and held that the petitioner being a widow, falls in specified category of the landlord under Section 23-J of the Act, therefore, entitled to invoke special provisions for eviction under Section 23-A(b) of Chapter III-A of the Act. However, the ground of bona fide requirement was not found proved on the basis of the evidence as during the pendency of the application for eviction, the petitioner rented out a shop of the dimension 3 x 15 feet, hence dismissed the application. Aggrieved of that, the petitioner has filed this revision.
6. Shri Neeraj Begad, learned counsel for the petitioner contended that the RCA having held that the petitioner is entitled to seek eviction as a widow landlady, as specified in category (iii) of Section 23-J of the Act, illegally with perverse approach dismissed the ' application for seeking eviction, holding the reauirement being not bona fide merely because the petitioner rented out a shop of small area which was not reasonably suitable for starting the business of Scooter Motor Cycle repairing shop by her son. Chapter III-A of the Act contains special provisions for eviction for certain categories of landlords specified in Section 23-J of the Act, on the ground of bona fide requirement under Section 23-A of the Act, in respect of residential and non-residential accommodation. After grant of leave to contest the application for seeking eviction, the RCA -- ought to have raised the presumption under Section 23-D(3) of the Act of bona fide requirement with reference to Section 23-A(b) of the Act, as the respondent has not proved contrary, that presumption does not stand rebutted merely because the shop of small area situated in the area was let out by the petitioner during the pendency of the application. Availability of alternative accommodation being reasonable and suitable is to be examined in the light of the requirement and not because the petitioner's son could have started the business in a small space; such an examination amounts to rationing of the accommodation vis-a-vis landlord, the landlord cannot be compelled to start the business in a shop of small space. Counsel placed reliance on the decision of this Court in Ratanbai v. Chetandas, AIR 1986 Madh Pra 16; B. Johnson v. C. S. Naidu, AIR 1986 Madh Pra 72; Rajeev Kapoor v. Ram-bilas, 1992 MPRCJ
7. Shri M. M. Agrawal, learned counsel for the respondent submitted that admittedly the husband of the petitioner is not dead. Therefore, the petitioner cannot claim eviction as a widow nor status of widow in the circumstances could have been determined by the RCA -- as for that the jurisdiction is with the Civil Court. It was submitted that the presumption under Section 23-D(3) has to be rebutted by the tenant when the landlord establishes her case of bona fide requirement; till then the burden does not shift on the tenant. Therefore, the application of the petitioner was rightly dismissed. Reliance was placed on the decisions of this Court in Civil Revision No. 15 of 1988 (1) decided on 25-1-1989. Fakirchand v. Nathmal Vyas, 1989 MPRCJ (NOC) 17 and Ramchandra Singh Jadon v. Satya Prakash Gupta, 1990 MPLJ 405.
8. Chapter III-A of the Act deals with eviction of tenant on the ground of bona fide requirement of which Section 23-A makes a special provision for eviction of tenant on the ground of bona fide requirement in respect of residential and non-residential accommodation contained in Clauses (a) and (b) of Section 23-A of the Act, respectively. A landlord falling within any of the specified category in the definition of landlord in Section 23-J for the purpose of Chapter III-A can approach the RCA by an application for eviction in place of Civil Court for passing an order of eviction of the accommodation on bona fide requirement. A procedure for dealing with the application for eviction has been prescribed from Sections 23-C to 23-1 of the Act. The question-in the present revision is "whether" the petitioner is a 'widow' as specified in category (iii) of Section 23-J of the Act, which reads thus--
"28-J. Definition of landlord for the purposes of Chapter III-A. For the purposes of this Chapter 'landlord' means a landlord who is--
(i) a retired servant of any Government including a retired member of Defence Services; or
(ii) a retired servant of a company owned or controlled either by Central or State Government; or
(iii) a widow or a divorced wife; or (iv) physically handicapped person; or
(v) a servant of any Government including a member of defence services who according to his service conditfons, is not entitled to Government accommodation on his posting to a place where he owes a house or is entitled to such accommodation only on payment of a penal rent on his posting to such a place."
9. In the case in hand the petitioner seeks eviction as widow specified in category (iii) of Section 23-J of the Act and not as a divorced wife. A bare perusal of her statement is clear that the petitioner's husband Dhursingh has not died but left her after stating Chod Chutti about 20 years back; since then she has no relationship with him. She has also admitted that she is not aware that her husband is alive or dead or remarried. As the petitioner did not know about her husband, whether he is alive or dead, the RCA raised an inference under Section 108 of the Evidence Act about the death of the petitioner's husband and, therefore, the RCA decided the issue in affirmative and held that the petitioner is a widow of the specified category of Sub-clause (iii) of Section 23-J of the Act.
10. In the opinion of this Court on the evidence adduced by the petitioner, the petitioner cannot be held to be a 'widow' Ordinary dictionary meaning of the word 'widow' is "a woman whose husband has died and who has not married again". (Oxford Large Print Dictionary, Third Edition, page 936).
11. According to 'Strouds Judicial Dictionary, Fifth Edition, Vol. 5, page 2853 --'Widow' means -- "a widow is a woman who has survived a man to whom she was lawfully married and who was his wife at the time of his death."
"A woman surviving a man with whom she has gone through the ceremony of marriage, but with regard to whom she had obtained a declaration of nullity of marriage is not his "widow."
'12. In 'Words and Phrases' Permanent Edition, Vol. 45 page 141 under the heading 'divorced wife", the word "widow" means a woman who has lost her husband by death and has no application to a divorced woman. Where husband and wife are divorced a vinculo, the wife after the husband's death is not his 'widow' and entitled to dower.
13. In case of Sushila Devi Somani v. Kedarnath Gupta, 1987 Jab LJ 450 : (AIR 1987 Madh Pra 65) this Court had on occasion to consider the word "widow" in reference to Section 23-A and Section 23-J of the Act. The Court after referring the word "widow" in reference to Section 23A and Section 23-J of the Act observed that the present meaning of the term 'widow' is familiar, well fixed, certain and definite and it is defined, both popularly and legally, to mean a woman who has lost her husband by death and has not taken another; the surviving lawful wife of a decedent; a wife who outlives her husband, one whose husband is dead; a surviving wife; and it has been said that in legal writings "widow" is an addition given to a woman who is unmarried and whose husband is dead.
14. On the evidence adduced by the petitioner, as per admission of the petitioner, the petitioner cannot be said to be a widow; but can seek an order of eviction as a 'divorced wife' as saving provision in Section 29 of the Hindu Marriage Act, 1955 lays down that nothing contained in the Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, whether solemnized before or after the commencement of the Act. However, the petitioner has not claimed the eviction as a divorced wife by custom nor the RCA raised an issue to that effect nor the parties led evidence, except the causal statement of the petitioner of Chod Chutti.
15. In the circumstances of the ease, it would be proper, without going into the question of bona fide requirement, to remit the case to the RCA for deciding the case on the right and entitlement of the petitioner under Section 23-A as a 'divorced wife' for that purpose parties shall be afforded the opportunity to amend their pleadings and RCA shall raise an issue on that and the parties shall be allowed an opportunity to lead evidence, thereafter the RCA shall decide the case afresh in accordance with law,
16. As I have not dealt with the question of bona fide requirement on merits and have remitted the case to the RCA to decide the right and entitlement of the petitioner to seek eviction on bona fide requirement; the RCA shall record its finding afresh on bona fide requirement also without being influenced by its earlier order. The RCA shall decide the case expeditiously as far as possible with an outer limit of four months from the date of appearance of parties which is fixed as 4-9-1995, of which no notice shall be issued to parties as they have been noticed here.
17. Accordingly the order of the RCA dated 26-6-1993 is set aside and the case is sent back for its decision afresh in accordance with law. No costs.