1. Challenge in this application under Articles 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 reasonable 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 case 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 Section 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 Section 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 Section 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.