ORDER
K.L. Shrivastava, J.
1. This revision petition by the tenant is directed agains the order dated 24-3-1987 passed by the Rent Controlling Authority, Ujjain (for short the Authority) whereby in proceedings under Section 23-A of the M.P. Accommodation Control Act, 1961 (for short ‘the Act’) it has been directed that the burden of proof being on him, he has to lead evidence first.
2. Circumstances giving rise to this revision petition are these. The non-applicant filed an application under Section 23-A of the Act against the petitioner for the latter’s eviction. During inquiry, when one of the witnesses for the non-applicant had already been examined it was contended on behalf of the non-applicant that in view of the presumption
under Section 23-D(3) of the Act the burden of proof being on the petitioner it should be required to produce its evidence first. On behalf of the petitioner it was contended that the N. A. must first complete her evidence. The learned Authority, in the light of the presumption under Section 23-D(3) of the Act, passed the impugned order.
3. The point for consideration is whether the revision petition deserves to be allowed.
4. Chapter III-A containing Sections 23-A to 23-F was inserted in the Act of 1961 by Act No. 27 of 83 and in place of civil court special forum of the Rent Controlling Authority was created for speedy remedy of eviction to the landlords on the ground of bona fide requirement of the tenanted accommodation. As the landlords misused the provision later by Act No. 7 of 85 Section 23-J, containing the restrictive definition of the term ‘landlord’ for the purpose of the said chapter was inserted and the benefit of the forum was restricted to the handicapped landlords included in the definition and Section 23-D(3) was also consequently amended making the presumption thereunder available only to the said special category of landlords.
5. The crucial question involved in this case pertains to the import of the provision in Section 23-D(3) of the Act embodying the rebuttable presumption of law in favour of the landlord.
6. The provision referred to above is in these terms:–
“In respet of an application by a landlord it shall be presumed, unless the contrary is proved, the requirement by the landlord with reference to clause (a) or clause (b) as the case
may be, of Section 23-A is bona fide.”
It may be pointed out that the term ‘proved’ is defined in Section 3 of the Indian Evidence Act, 1872 (for short ‘the Evidence Act’). Reference at this very stage may also be made to the definition of the expression ‘shall presume’ as given in Section 4 of the Evidence Act in which the term disposed (vide Section 3
Evidence Act) has been used.
7. It has to be conceded that the Authority can have jurisdiction to order tenant’s eviction only on the fulfilment of the requirements of the Act under which it has been created. The Landlord, before he is entitled to the relief of eviction under cither of the clauses of Section 23-A of the Act, has to plead that he is within the ambit of the restrictive definition of landlord as embodied in Section 23-J of the Act and that the accommodation is required in the circumstances contemplated under the relevant provision and further that the requirement is bona fide. It may be stated here that even in respect of the eviction order contemplated under Section 23-C of the Act in any of the three contingencies at the very initial stage of leave to contest the application, based not on any oral evidence but on the statutory fiction of admission of the statement made by the landlord in the application for eviction, the Authority must ensure that the legal requirements for eviction are satisfied. Reference in this connection may usefully be made to the observation in paragraph 18 of the Division Bench deciion in B. Johnson’s case 1985 MPLJ 675 : 1985 Jab LJ 793) : (AIR 1986 Madh Pra 72).
8. At this stage it is pertinent to advert to Rule 16 of the M. P. Accommodation Control Rules, 1966. It reads thus : —
“Code of Civil Procedure to be generally followed. In deciding any question relating to procedure not specifically provided by the Act and these Rules, the Rent Controlling Authority shall, as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908.”
Section 101 contained in Chapter VII of the Evidence Act which relates to the burden of proof reads thus :–
“Burden of proof. – Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”
Section 102 ibid is also pertinent. It is in these terms:–
“On whom burden of proof lies.– The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
It may be pointed out that the expression ‘burden of proof’ is used in two senses, that is, the burden of proving an issue or issues sometimes termed the legal burden (burden of proof on the pleadings and the land (sic) and the burden of proof as a matter of adducing evidence during the various stages of trial. What is called the burden of proof on the pleadings or the primary burden should not be confused with the burden of adducing evidence which is described as shifting. These two aspects of the burden of proof are en-nunciated respectively in Sections 101 and 102 of the Evidence Act. Section 101 shows that the initial burden of proving a prima facie case in his favour is on the plaintiff and when he gives such evidence as will support a prima facie case, the onus shifts on the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. It may be pointed out that as the case continued to develop the onus may shift back again to the plaintiff. Reference in this connection may usefully be made to the decision in Pannujeeganiya’s case AIR 1963 Madh Pra 15 which relates to a suit on a bond. Therein it has been observed as under (at p. 16):–
“In the case of a suit on a bond when execution and consideration are both denied by the defendant the primary burden to prove execution as well as consideration is on the plaintiff. But once he proves execution, or the execution is admitted a presumption arises against the debtor that he must have received the consideration when she executed the bond and the burden shifts to the latter. That burden, the defendant can discharge either by establishing circumstances as would vitiate the contract or he can make out circumstances to show that no presumption arises against him under Section 114 of the Evidence Act. As soon as the defendant succeeds in this, then the burden shifts back to the plaintiff. The recital in the document that the defendant has received consideration is, no doubt, evidence against him but it is not conclusive and the defendant can show that the recital is not correct. The defendant can discharge his burden either by himself producing the evidence or from the evidence produced by the plaintiff. Whether the plaintiff has succeeded on the evidence or on the admitted facts in discharging his burden is a question of fact but the question whether the burden of proof shifts back to the plaintiff in the circumstances is a matter of law.”
Reference may also be usefully be made to the decision in K. S. Nanji’s case AIR 1961 SC 1474. The decision in Nagayya Gowdu’s case AIR 1957 Andh Pra 264 is also pertinent. Therein it has been observed as under (at p. 266) :–
“There is a difference between the burden of proof on the pleadings and the burden of adducing evidence. The former depends upon the facts asserted or denied and is determined by rules of substantive or statutory law or by presumption of law or fact. Such a burden never shifts.
If the entire evidence has been adduced by both the parties and the tribunal feels it can make up its mind as to the truth of version of either party, then the decision will not turn upon the burden. But where the evidence is conflicting or equally balanced so as to make it difficult to arrive at a definite conclusion, then the burden of proof on the pleadings turns the scale. The question of ounus may also be decisive where one or both the parties has not adduced any evidence on the particular issue.”
9. In Order 18, C.P.C. which is on ‘hearing of the suit and examination of witnesses’, Rule 1 regarding right to begin reads as under:–
“The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts allged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.”
Thus under the rule, one is to begin on whom lies the burden of proof as a matter of law and pleadings. Rule 2 deals with the statement and production of evidence and in (4) of it, it has been provided as under:
“Notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage.”
Where there are several issues, Rule 3 of Order 18 provides for option to the party beginning, to reserve his evidence on the issue the burden of proving which lies on the other side.
10. It may be pointed out that leave to contest the application for eviction is granted to the tenant under Section 23-C of the Act only when the application filed by him supported by affdavit discloses such facts as would disentitle the landlord from obtaining an order for recovery of possession of the accommodation on the ground specified in Section 23A of the Act. The grant of leave thus implies that the tenant too has a defence to make. Therefore, after grant of such leave the law contemplates an inquiry involving oral evidence. It provides, as is clear from Clauses 1 and 2 of Section 23D, hearing of the landlord’s application and recording of oral evidence in an inquiry in the manner therein mentioned. It may be stated at the cost of repetition that the inquiry contemplated is as respects the landlord’s application. It is clear that once leave has been granted, the stage for eviction order contemplated under Section 23C without any oral evidence is crossed and the application under Section 23A of the Act must be disposed of on inquiry involving evidence and it has, therefore, to be held that it is by evidence alone that the landlord must discharge the burden of proving the several situations pleaded by him except the nature of requirement being bona fide of which burden he stands relived in view of the rebuttable presumption under Section 23D(3) of the Act.
11. Reference at this stage may be made to the decision in Ram Bharose’s case, (1986) 1 WN 15. Therein it has been pointed out that the presumption under Section 23D is limited to the bona fide or otherwise of the requirement
and does not extend to the averment that the landlord is covered under the restrictive definition under Section 23J of the Act.
12. The decision in M/s. Sunil Cloth Store’s case, 1986 MPRCJ 147 is also pertinent. Therein it has been pointed out that the Rent Controlling Authority has to make a finding that a specific case under either of the clauses of Section 23A of the Act has been made out for the tenant’s eviction before it can have jurisdiction to require the tenant to adduce evidence in rebuttal because at no point of time earlier he can have an opportunity to take-up any decision on the issue of eviction, the determination under Section 23C being confined only to the question of leave to defend. According to the decision the presumption under Section 23D(3) of the Act merely relieves the landlord of proving that his requirement is bona fide. In the subsequent decision in Gyanibai’s case, 1987 MPLJ 113 it has been observed that from perusal of the provision embodied in Section 23A(a) of the Act it is clear that despite the presumption under Section 23D(3) as to the bond fide nature of requirement it has to be found as a fact that the requirement of the accomdation according to law for the special category of landlord is there and unless this is found the further question of the requirement being bona fide does not crop-up for consideration.
13. Reference at this stage is apposite to the Division Bench decision in B. Johnson’s case (AIR 1986 Madh Pra 72) (supra). Therein it has been held that the Amendment Acts Nos. 27/83 and 7/85 are not un-constitutional and are valid. In paragraph 20 of the decision with reference to the presumption under Section 23D(3) of the Act there are observations to the effect that the scheme of the Act is that on a prima facie case for eviction of the tenant being made out in the landlord’s application, he should be granted the relief of eviction unless the tenant satisfies that there is basis for him to contest the landlord’s claim. Taking note of the rebuttable presumption in favour of the special category of the landlords it has been held that it does not amount to discrimination and is not violative of the Article 14 of the Constitution.
14. It may be pointed out that in a decision what is of essence is its ratio and not the observations found therein. As pointed out in the decision in Bhanu Prakash’s case, 1978 Jab LJ 803 : (AIR 1979 Madh Pra 157) a decision is an authority for what it decides.
15. In the aforesaid decision in B. Johnson’s case (AIR 1986 Madh Pra 72) (supra) what was in controversy was the validity of the Amendment Acts including the provision regarding the presumption under Section 23D(3) of the Act. It may be stated that the controversy as to the import of the provision regarding presumption embodied in Section 23D(3) so far as the question of burden of proof in the senses in which the phrase is commonly used was not at all before the Division Bench.
16. It may also be noted that the contrary proof contemplated under Section 23D(3) of the Act may be brought forth even in the cross-examination of the landlord and his witnesses and there may, therefore, be no occasion at all for the tenant to lead evidence as such to rebut the presumption and to show that the requirement in the landlord’s claim; for eviction is not bona fide.
17. With great respect to the learned Judges constituting the Division Bench in B. Johnson’s case (AIR 1986 Madh Pra 72) (supra) it may be stated that apart from the stage under Section 23C of the Act, the fiction thereunder is not to remain operative even after the stage under Section 23C is crossed. Once leave to contest the landlord’s application is granted to the tenant, the law contemplates, in the event of contest, determination of the controversy between the parties after inquiry involving oral evidence and I am of the view that the presumption under Section 23D(3) of the Act is only partial and is confined to the bona fide nature of requirement and does not extend to the other ingredients involved in the ground for grant of relief of eviction. The law does not by the presumption aforesaid seek to relieve the landlords of the special category of the burden of proving by adducing evidence the ingredients except that of bona fide nature of the requirement and there is no question of shifting of onus in respect thereof merely on
the pleadings as distinct from proof.
18. From the foregoing discussion it is clear that by virtue of the presumption provided in Section 23D(3) of the Act the landlord stands relieved of the burden of initiating evidence touching the bona fide nature of the requirement and is entitled to a finding on the point in his favour in the event there is no evidence on the point or the evidence thereon is conflicting or is evenly balanced as pointed out in the decision in Naggaya Gowdu’s case (AIR 1957 Andh Pra 264) (supra).
19. In the decision in B. Johnson’s case (AIR 1986 Madh Pra 72) (supra) with advertence to the language of Sub-sections(1) and (2) of Section 23E of the Act it has been pointed out that the scope of revision under the aforesaid section is wider than that of the revision under Section 175 of the Code but is narrower than that of an appeal.
20. As a result of the foregoing discussion I find that the impugned order whereby the learned Authority has cast on the tenant the burden of adducing evidence in rebuttal without first requiring the landlord to prove the various ingredients except the ‘bona fide’ nature of the requirement entitling him to the relief of eviction, occasions miscarriage of justice and is liable to be interfered with in revision under Section 23E of the Act.
21. In the result the revision petition is allowed. The impugned order is set aside. The learned Rent Controlling Authority is directed to require the landlord to adduce evidence first keeping in view the observations in foregoing pragraphs. In the circumstances of the case parties are directed to bear their own costs as incurred.