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T.M.A. Abdul Aziz Vs. Venkatachalam Pillai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1641 of 1951
Judge
Reported inAIR1954Mad149; (1952)IMLJ836
ActsMadras Buildings (Lease and Rent Control) Act, 1946 - Sections 2(1), 10, 11 and 12(4); Code of Civil Procedure (CPC) , 1908 - Sections 11 and 100
AppellantT.M.A. Abdul Aziz
RespondentVenkatachalam Pillai
Appellant AdvocateK.S. Desikan, Adv.
Respondent AdvocateS. Krishnamachariar, Adv.
DispositionPetition allowed
Cases ReferredMohabir Das v. Gaya Municipality
Excerpt:
.....interpretation wooden structure can be said to be building within meaning of act. - - 5. the learned counsel for the petitioner after inviting my attention to several decisions wherein wooden structures have been held to be buildings, has urged that even if this superstructure could not be considered as a building within the ordinary meaning of the term, still it will come perfectly within the scope of the definition of hut. 6. even though it may not be necessary to go further into the question as to whether the superstructure in question could be brought within the scope of the definition of building in view of what i have stated above still since the learned counsel for the petitioner has urged that it could be taken as a building and has referred me to a number of authorities, i..........now preferred against the decision of the learned district judge.3. the contention raised by the learned counsel for the petitioner is that except on new facts there can be no second application by the landlord for evicting the tenant when once he took out an application on the plea that the building was required for his own use and when he got an adverse order which was confirmed on appeal. the learned counsel for the petitioner relies upon the decision of a bench of this court in -- 'raghavalu chetti v. ramamurthi', 1951 mad lj (sn) 46 (a) where it has been held that section 10 of the act would not be a bar to a new application if there are new materials on which the application could be made. in this case the learned counsel's point is that no new materials have been placed before.....
Judgment:
ORDER

Basheer Ahmed Sayeed, J.

1. The tenant is the petitioner in this civil revision petition. He is seeking to revise the order of the learned District Judge which has held that the wooden bunk which the respondent is using for the purpose of his business is not a 'building' or 'hut' within the meaning of the definition of 'building' given in the Madras Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act). In that Act, Section 2 (1) defines a building as 'any building or hut or part of a building or hut let or to be let' separately for residential or non-residential purposes' and includes various other items referred to in sub-clauses (a) and (b) of Section 2(1).

2. The petitioner is in occupation as tenant under the respondent of a small building measuring about 14' by 31/2' and is paying a rent of Rs. 6-8-0 per mensem. The respondent, on the other hand, is in possession of a bunk constructed completely of timber measuring about 5' by 41/2'. This bunk is placed upon cement blocks on the site belonging to Kumbe-swaraswami temple in Kumbakonam. The respondent sought to evict the petitioner on the ground that he had no place for carrying on his business. In the petition filed by him, he admitted that he was in occupation of a building by which he meant a wooden structure which he had constructed on the temple site and which structure happens to be removed every time, when the deity is taken in procession for 10 days in the year.

The Rent Controller, on the admission of the respondent, dismissed the petition. Thereupon an appeal, was preferred against that order by the respondent before the learned Subordinate Judge and the learned Subordinate Judge confirmed that order. After sometime, the respondent again took out another application before the Rent Controller. The Rent Controller held that in' view of the previous application and the orders thereon the second application was not tenable.

On appeal, the learned Subordinate Judge reversed the order of the Rent Controller and remanded the petition for enquiry and investigation. On remand, the Rent Controller held that the superstructure was a building and that the respondent was not entitled to an order for eviction. On appeal, the learned Subordinate Judge held that the superstructure which the respondent was possessed of was not a building. A further appeal was preferred before the learned District Judge who concurred with the learned Subordinate Judge. This revision is now preferred against the decision of the learned District Judge.

3. The contention raised by the learned counsel for the petitioner is that except on new facts there can be no second application by the landlord for evicting the tenant when once he took out an application on the plea that the building was required for his own use and when he got an adverse order which was confirmed on appeal. The learned counsel for the petitioner relies upon the decision of a Bench of this Court in -- 'Raghavalu Chetti v. Ramamurthi', 1951 Mad LJ (SN) 46 (A) where it has been held that Section 10 of the Act would not be a bar to a new application if there are new materials on which the application could be made. In this case the learned counsel's point is that no new materials have been placed before the court for entertaining a fresh application for the simple reason that even in the very first application taken out by the landlord he had stated that what he was in possession of was a building and that has not ceased to be a building and therefore no new circumstances or new materials had been available in order to justify a fresh application being filed.

The correctness of this contention would depend upon the fact as to whether the superstructure which is in the possession of the landlord is really a building and comes within the scope of the definition of the word 'building'' given in Section 2 of the Act or whether it is not a building. If the superstructure of the description given above which the landlord respondent is in occupation and where he is carrying on his business were to be taken as a building then certainly a second application would not lie. If it is not a building or even a hut, then certainly the application of the respondent would lie. Then the whole question will turn upon the point as to whether the structure which the respondent is occupying and where he is carrying on his business is a building within the meaning of Section 2 of the Act, or not.

4. The definition given in Section 2 of the Act includes not merely any building or hut or part of a building or hut but it also goes on further to say that such a building or part of a building or hut should be one capable of being let separately for residential or non-residential purposes. So far as the structure in question is concerned, it cannot be disputed that the superstructure which is in the possession of the respondent is one that can be let out on rent to any person who may carry on business similar to the one that respondent is carrying on. That being the case, the question that arises next is whether the superstructure of the kind in question is a building within the meaning of the definition contained in Section 2 of the Act.

5. The learned counsel for the petitioner after inviting my attention to several decisions wherein wooden structures have been held to be buildings, has urged that even if this superstructure could not be considered as a building within the ordinary meaning of the term, still it will come perfectly within the scope of the definition of hut. The definition of hut is given in Webster's dictionary as 'temporary wooden structure'. There is no limitation as to the length, breadth or height of any such wooden structure which can be called a hut, so that, when Section 2 of the Act includes also a hut, this building even if it is to be considered a hut will fall within the scope of that section. Even though there may be considerable difficulty in arriving at the conclusion that the superstructure in question which is of small size measuring about 5' by 41/2 can be called a building, nevertheless, in my view, this superstructure which the respondent has in his occupation and where lie is carrying on business and wnich he has constructed on the site belonging to he temple authorities is certainly a hut. Therefore, when he is in occupation of a hut of his own he cannot certainly seek to evict the tenant who is in occupation of another building belonging to him and has been paying rent regularly.

6. Even though it may not be necessary to go further into the question as to whether the superstructure in question could be brought within the scope of the definition of building in view of what I have stated above still since the learned counsel for the petitioner has urged that it could be taken as a building and has referred me to a number of authorities, I would like to refer to them and examine the position.

7. The first of the series of authorities referred to by the learned Counsel for the petitioner is -- 'Stevens v. Gourley', (I860) 1 LT 33 (B). In that case, a wooden superstructure which was 16' by 13.8' was held to bo a building. In -- 'Nandumal v. Municipal Committee, Simla', AIR 1925 Lah 252 (C) a wooden structure on wheels which was 10 by 8' was again held to be a building. In --'Hanrahan v. Leigh on Sea Urban Council', (1909) 2 KB 257 (D) an old railway carriage which stood upon a plot of land and was converted into a dwelling house was held to have become a new building within the meaning of Section 159 of the Public Health Act, 1875 (of England) and that since it did not comply with the requirements of the bye-laws for the purpose of erection, the urban council had power to pull down the whole building and not merely to remove and alter the work by which it was so converted. To similar effect is the decision in -- 'Richardson v. Brown', (1885) 49 JP 661 (E) reported in 'Mews Digest Vol. 9, page 392. It appears from a consideration of ail these decisions referred to by the learned counsel that even though a superstructure may be one of wooden substance and Wen though, it may not be fixed to the ground and even if it is not of an everlasting character like masonry or stone building, it has been held to be a building for the purpose of municipal laws. In this case it should be remembered that the definition of the word building is intended for the purpose of affording it relief to tenants and it is the purpose of the Act to relieve congestion and the unnecessary hardship that is caused by landlords evicting the tenants without any just case. When the relationship of the landlord and tenant is kept in view in regard to the hut, then the definition given in Section 2 of the Act with regard to the hut assumes considerable significance and importance.

It cannot therefore be argued with any force that huts of the kind involved in this petition have been sought to be excluded from the scope of the Act. It that were a proper construction of the scope of the Act, then it would amount to saying that as between the poor landlords and poor tenants, the Act provides no remedy. That will be defeating the very purpose of the Act.

8. The learned counsel for the respondent however has urged that the question as to whether any superstructure, be it of wood or of any other material, is a building, is a question of fact and when two courts have held that the superstructure now involved in this petition is not a building, this court ought not to interfere with the findings of the courts below as there is no question of law involved for decision. It is difficult for me to agree with this contention of the learned counsel for the respondent. The whole case turns upon not merely on the applicability of Section 10 of the Act which has been raised by the learned counsel for the petitioner, but also on the question as to whether a superstructure of the kind described in this petition is or is not a building. It involves the construction of the definition of the words 'building' and 'hut' given in Section 2 of the Act, so that it cannot be argued that this is purely a question bf fact involving no question of law. In so far as the definition has to be interpreted, I think there is justification for this court to interfere in revision in this petition.

9. The next point urged by the learned counsel for the respondent is that Section 12(4) 01 the Act does not give room for revision when already the matter has been decided by two courts, possessing appellate authority. I do not think that I can agree with the learned counsel for the respondent on this question. In so far as the District Judge is concerned, he is subordinate to the High Court and any decision of his is subject to revision by this court. I think there is scope for the decision of the learned District Judge being interfered with in revision.

10. The further point taken by the learned counsel for the respondent is that in the case cited by the learned counsel for the petitioner the size of the wooden structures which formed the subject-matter of those decisions was considerable and that the superstructure involved in this petition being of very small size it ought not to be brought within the scope of the definition given in Section 2 of the Act. I do not think this argument can be accepted. Even though the wooden structure in question in this petition is about 5' by 41/2 nevertheless it serves a good purpose.' It enables the respondent to carry on his business and the photographs which have been produced in this peti-tion would convince any observer that the superstructure is a reasonably well proportioned hut where business is being carried, on and can be carried on by any person if it is let on rent.

No doubt, some of the decisions, particularly the one reported in -- '(1860) 1 LT 33 (B)', have stated that any superstructure of considerable size and which would last for a considerable time should be construed as a building but what that considerable size and what that considerable time for which such superstructure should last in order to be considered a building within the scope of the section, of the Acts which the courts were called upon to construe, has not been defined anywhere. In the absence of such a definition, the contention of the learned counsel that since it is stated that they should be of considerable size and that they should last for a considerable time, this wooden superstructure involved in the suit cannot be a building or hut has not much force. I do not think that it will be right to say that the superstructure of the kind in question cannot be brought within the scope of the definition of a hut. On the other hand, this superstructure could last as long as any other building for the matter of that; though it may be of timber, it cannot be said that timber lasts for lesser time than buildings of any other material.

11. The learned counsel has invited my attention to the decision in -- 'Government of Bombay v. P. A. Wadia' and has contended that in so far as the question now raised in this petition was not raised or was not in issue at an earlier stage, there may be no res judicata. I do not think we are now considering the question of res judicata as such. The learned counsel for the petitioner has only relied upon Section 10 of the Act and I think the principles of this section are not exactly the same as those that are contained in Section 11, C. P. C. The ruling and the observations of that case do not apply to the facts of this case. The learned counsel for the respondent has also relied upon the decision in -- 'Moir v. Williams', (1892) 1 Q B 264 (G). The observations and the ruling in that case also, in my view, do not apply to the facts of the present case. Even so, the decision in -- 'Mohabir Das v. Gaya Municipality', AIR 1915 Cal 806 (1) (H), does not render any assistance to the learned counsel for the respondent, for in that decision a masonry wall which had the effect of extending certain building was held to be re-erection of the building. I do not think that in view of the objects of the Act and the definition given in Section 2 of the word 'building' which includes a hut and in view of my finding that the superstructure involved in this petition comes well within the definition of a hut, in the light of the decisions that have been referred to, I think that the decision of the learned District Judge has to be set aside. This petition is therefore allowed and the petitioner will have his costs in this court.


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