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S. Mohammed Iqubal Vs. M. Padmanabhan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P.No. 2436 of 1995
Judge
Reported in1999(3)CTC116; (1999)3MLJ330
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 -- Sections 10(3) 13 and 18
AppellantS. Mohammed Iqubal
RespondentM. Padmanabhan
Appellant AdvocateMr. C. Chinnasamy, Senior Counsel for ;M/s. S. Haja Mohideen, Adv.
Respondent AdvocateMr. N. Vanchinathan, Adv.
Cases ReferredRadhakrishnan v. Seethalakshmi
Excerpt:
.....to get accessibility to road - said accessibility available to landlord even without eviction of tenant - landlord failed to proved either hardships felt or advantages going to avail on eviction - balance of convenience in favour of tenant who may have to face hardship on shifting - suit for eviction dismissed. - - 2. 6. the rent controller, while discussing the point of requirement of the premises by the landlord for his additional accommodation has remarked that as per the evidence of the landlord, if the middle wall which is in fact separating the residential building in the occupation of the landlord and the shop that is let out in favour of the tenant is removed, he will be having direct access to enter into his house, but instead now he has to go by the other way round viz..........ground of requiring the premises for additional accommodation by the landlord. on appeal by the tenant, the rent control appellate authority has rejected the case of the landlord on the ground of requiring the premises for his personal additional accommodation also and has allowed the appeal, as a result of which, now the landlord has come forward to file the above civil revision petition on certain grounds, as alleged in the memorandum of grounds of revision.4. during enquiry before the rent controller, the petitioner/landlord has not only examined himself as p.w.1 but also has marked two documents as exs.a.1 and a.2. on the part of the respondent/tenant, he has examined himself as r.w.1 and has marked 27 documents as exs.b.l to b. 27.5. apart from these, two more documents have also.....
Judgment:
ORDER

1. The above civil revision petition is directed against the judgment and decree dated 26.3.1994 made in R.C.A.No. 17 of 1992 by the Rent Control Appellate Authority and the Court of Subordinate Judge, Ranipet, thereby reversing the fair and decretal order dated 18.8.1992 made in R.C.O.P.No. 28 of 1986 by the Rent Controller and the District Munsif, Arakkonam.

2. The original petition for eviction of the tenant has been filed by the landlord on four grounds viz, (1) wilful default in payment of rent, under Section 10(2)(i); (2) for committing acts of waste by the tenant thereby impairing materially the value or utility of the building, under Section 10(2)(iii); (3) the tenant being guilty of such acts which are nuisance to the occupiers of the other portions, under Section 10(2)(v) and (4) requiring additional accommodation by the landlord (who is occupying a part of the building) under Section 10(3)(c), all under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

3. The Rent Controller, rejecting the claim of the landlord on the first three grounds has allowed the petition on the sole ground of requiring the premises for additional accommodation by the landlord. On appeal by the tenant, the Rent Control Appellate Authority has rejected the case of the landlord on the ground of requiring the premises for his personal additional accommodation also and has allowed the appeal, as a result of which, now the landlord has come forward to file the above civil revision petition on certain grounds, as alleged in the memorandum of grounds of revision.

4. During enquiry before the Rent Controller, the petitioner/landlord has not only examined himself as P.W.1 but also has marked two documents as Exs.A.1 and A.2. On the part of the respondent/tenant, he has examined himself as R.W.1 and has marked 27 documents as Exs.B.l to B. 27.

5. Apart from these, two more documents have also been marked as court documents Exs. C.1 and C.2.

6. The Rent Controller, while discussing the point of requirement of the premises by the landlord for his additional accommodation has remarked that as per the evidence of the landlord, if the middle wall which is in fact separating the residential building in the occupation of the landlord and the shop that is let out in favour of the tenant is removed, he will be having direct access to enter into his house, but instead now he has to go by the other way round viz Manicka Mudali Street, which is narrow and unhygenic and has further opined that if the landlord requires to enjoy the premises belonging tohim according to his convenience, the tenant cannot stand in the way. The Rent Controller has justified the contentions of the landlord on this ground especially in view of the fact that there are 14 members in the family of the landlord further rejecting the contentions of the tenant that the premises occupied by him is used for non-residential purposes and that the adjacent property has been used by the landlord admittedly for residential purposes; that there is a regular pathway to gain entry into his residence and the landlord can gain direct access and that the landlord is attempting to evict him on the reasons assigned which are not genuine. Ultimately, the Rent Controller, agreeing with the landlord on the ground of requiring the premises for his additional accommodation, has ordered the eviction of the tenant.

7. Aggrieved, the tenant has preferred an appeal before the Rent Control Appellate Authority and the Subordinate Judge, Ranipet. The learned appellate authority has remarked that the petitioner/landlord has not pleaded that the residential building in his occupation is insufficient for himself and his family to reside; that he has also not clearly stated that the non- residential building is required for his residential purposes; that he has himself admitted that in between both these portions, there is a wall to the width of 41/2'; that the landlord has not even deposed in his evidence that since the premises occupied by the tenant is located on the Gandhi Road, he requires the same for gaining entry into his residential building; that from Ex.C.1 Commissioner's Report, it is clear that adjacent to the premises in occupation of the tenant, the landlord has got a shoe mart in D.No.9, from where there is a direct access to enter into the residential building occupied by the landlord and yet another entrance is also there at the back of D.No.9 and hence concluded that the claim of the landlord that for the purpose of gaining entry into the premises occupied for residential purposes, there is no proper way is false. The Rent Control Appellate Authority would further observe that the building occupied by the tenant is bearing Door No. 8 and the building wherein the landlord is running the shoe mart is bearing the Door No. 9; that the residential building of the landlord is entirely different from that of the premises occupied by the tenant; that since it is the admitted case of the landlord that there is a strong wall separating both the portions to the width of 4 1/2', if he requires the premises for his additional accommodation, an application under Section (10)(3)(a) is proper and not under Section 10(3)(c) and would say that the landlord cannot claim the eviction of the tenant from the premises just for the purpose of gaining entry into the building occupied by him for residential purpose and no sufficient reasons have been assigned nor has it been established in evidence that the premises occupied for nonresidential purpose is required for the occupation of the landlord for residential purposes and that the landlord whose duty it is to establish that the premises is required for his additional accommodation, has failed to substantiate his claim and would reject the claim of the landlord and allow the appeal preferred by the tenant setting aside the fair and decretal order passed by the Rent Controller. Aggrieved, the landlord has come forward to file the above civil revision petition.

8. During arguments, the learned senior counsel appearing for the revision petitioner besides bringing out the implications of the orders passed by the Rent Controller from the relevant passages of the said order, would also contend that initially the premises was let out for a term of eleven months only and would say that it is a relevant factor that should be considered by the Court. The learned senior counsel would cite a judgment in M.P.M. Hameed Ibrahim and one another v. V.S. Bagirathan and others, : 1999(1)CTC396 wherein it is held:

'The argument of the learned senior counsel for the petitioners that the petition under Section 10(3)(a)(iii) of the Act is not maintainable and only a petition under Section 10(3)(c) of the Act is maintainable, as the landlord is in occupation of a portion of the very same premises' does not appear to be correct, in view of the judgment of the Hon'ble Supreme Court of India v. Radhakrishnan v. S.N. Loganatha Mudaliar, : [1998]3SCR1029 referred to above. Even if this argument is correct, yet I am of the opinion that the order of the authorities below cannot be interfered with for more than one reason. Mere quoting a wrong provision of law cannot be a ground to deny the relief to the landlord, if the materials otherwise available on record enables him to get the relief, is too well settled. It is no doubt true that in the rent control petition, the provision of law quoted is only under Section 10(3)(a)(iii) of the Act and there is no pleading on the ground of additional accommodation as well on the ground of relative hardship. In the counter affidavit of the first respondent, a point has been taken that the petition under Section 10(3)(c) alone is maintainable and in that event the relative hardship should be gone into. There is also no pleading by the respondent before the rent controller on relative hardship.'

9. The learned senior counsel would also cite yet another judgment in Busching Schmitz Private Ltd. v. P.T. Menghani and another, : [1977]3SCR312 wherein the Apex Court held that

'Residential premises are not only those which are let out for residential purposes. Nor do they cover all kinds of structures where humans may manage to dwell. Use or purpose of the letting is no conclusive test. Whatever is suitable or adaptable for residential uses, even by making some changes, can be designated 'residential premises'. And once it is 'residential' in the liberal sense S. 14-A stands attracted.'

10. On the same proposition of law, where it is a residential building or non-residential one and on the bona fide requirement of the same for residential purpose, the other judgment cited by the learned senior counsel for the petitioner is one in M. Chinniah Servai v. The State of Madras represented by the Secretary, Home Department, 1960 (II) M.L.J. 191 wherein it is held that

'There is no provision in the Act under which the owner of a non-residential building could apply for eviction of a tenant of such a building on the ground that he bona fide requires it for his residential purpose. Apart from cases of non residential buildings such as factories, large establishments etc. which could not be normally considered fit for residential purposes, theremay be buildings which may be called non- residential because they were let for non-residential purposes but which could be used for residential purposes as well. There is no provision in the Act under which non-residential buildings of this type could by converted into a residential building though there is a provision under Section II (I) of the Act for converting a residential building into a non-residential one. Hence where the justice of any case could not be met by the provisions of the Act there is legitimate scope for the exercise by the Government of the powers conferred under Section 13 of the Act.

11. Citing from the evidence the inconveniences caused to the landlord, the learned senior counsel would conclude citing yet another judgment in G.N. Rajaram v. Mukunthu N. Venkatarama Iyer, 1998 L.W. 624. This is case where an application under Section 10(3)(c) has been filed by the landlord requiring the premises as additional accommodation for the residential purposes which is in occupation of the tenant for non-residential purposes. Discussing the applicability of the concept of a unit of accommodation, made up of the portion in the occupation of the landlord and the tenant it is held therein that the test is satisfied in this case assuming that it is applicable. It is further held therein that

'In this C.R.P.against an order for eviction passed by the lower courts under S. 10(3)(c) of T.N. Act 18 of 1960 it was contended for the revision petitioner/tenant that the premises in the occupation of the petitioner had been let out for non-residential purposes and, therefore, the landlord cannot secure an order for eviction with reference to such a premises under S. 10(3)(c) of the Act on the ground that it is required for residential purposes by way of additional accommodation, and that the concept of a unit of accommodation made up of the portion in the occupation of the landlord and the tenant should be applied, and if so done, no order for eviction can be passed against the petitioner.

Held: Rejecting the contents: The features revealed by the report of the Commissioner clearly make out that the building in question is a residential building. With reference to such a building, the respondent/landlord is in occupation of the entire first floor and also the other areas in the ground floor. The building being a residential one, which in part is also in the occupation of the respondent for residential purposes, there cannot be any objection whatever to the passing of an order for eviction against the petitioner under S. 10(3)(c) of the Act.

12. In reply, the learned counsel appearing for the respondent/tenant would contend that from out of the four grounds offered, three grounds were rejected by the Rent Controller himself and only on the fourth ground of requiring the premises as additional accommodation for residential purposes, the petition was allowed and that ground also had been rejected, on appeal, by the Rent Control Appellate Authority. The learned counsel would argue that only on the ground of hardship, the petition could be ordered and there is no hardship pleaded or proved by the landlord at all. At this juncture, the learned counsel for the respondent/tenant would cite a judgment delivered in P.Annakili Ammal and another v. H.C. Hussain and Hassan and another,1984 (I) M.L.J. 340 wherein it is held that

'Though the proviso directing the rejection of an application under Section 10(3)(c) of the Act is in the nature of an instruction addressed to the Rent Controller to do so if the Rent Controller comes to the conclusion that the hardship that may be caused to the tenant by an order of eviction will outweigh the advantage to the landlord, yet in order to enable the Rent Controller to give effect to the proviso, it would be necessary for the parties to plead so and place necessary materials in support thereof, as otherwise the question of relative hardship cannot be satisfactorily decided. In this case it is obvious that if the first respondent who is eking out his livelihood by running the tea shop in the premises in his occupation is evicted, he will be left without any ostensible means of livelihood and it will not be possible for him to secure similar accommodation in the vicinity enjoying the same convenience and also payment of the rent that is now paid to the petitioner. Therefore, even assuming that the petitioner has established a case for additional accommodation under Section 10(3)(c) of the Act, on a consideration of the question of relative hardship, it has to be held that the hardship likely to be suffered by the first respondent will outweigh the advantage that may enure to the landlord by passing the order of eviction. On this ground alone, the petitioners have to be refused the relief of eviction of the first respondent from the premises in his occupation.'

13. Yet another order cited by the learned counsel for the respondent/tenant is from R. Krishnaswamy v. N. Arumugam, 1993 (I) M.L.J. 122, which has been decided in consideration of the earlier decision cited above emphasizing the same point that 'the petition filed under Section 10(3)(c) of the Act contains no averment with regard to the hardship as contemplated under the proviso to the said Section and hence the petition is not maintainable and the same is liable to be dismissed.' It is held therein that

'...according to the proviso, the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. In order to decide this question of hardship, there must be proper pleadings in the petition. If the hardship is not pleaded in the petition, that is fatal to the petition.'

14. The other order cited by the learned counsel for the respondent/tenants one delivered in T.S. Sethuraman v. J. Nagalakshmi and another, : (1998)IIMLJ547 in which the order reported in R. Krishnaswamy v. N. Arumugam, : (1993)1MLJ122 , cited above, has been followed and it is held that

'For maintaining petition under this section relative hardship should be pleaded and established - Relative hardship can be decided only on basis of facts available in pleadings and evidence - There should be categorical finding by authorities that hardship which may be caused to tenant by granting decree for eviction would outweigh advantage to landlord - No pleading regarding relative hardship and no evidence available on record- No finding in this regard by Authorities - Eviction cannot be ordered.'

15. The other order cited by the learned counsel for the respondent/tenant is one delivered in Radhakrishnan v. Seethalakshmi 1988 (1) L.W. 67, wherein the first decision cited above reported in Annakili Ammal and another v. H.C. Hussain and Hassan and another, 1984 (I) M.L.J. 340 has been considered and it is held that

'the landlord should fail, in this revision petition because he has not at all pleaded in the eviction petition about the relative hardship that would be caused to the parties nor proved the fact that the relative hardship would be more on his pan than on the part of the tenant. S. 10(3)(e) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 contemplates that the landlord should prove that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. Though the petitioner offers to let in evidence on this aspect, I feel that it cannot be allowed at this stage. On this ground alone the eviction petition should be dismissed.'

16. The last order cited by the learned counsel for the respondent/tenant is one by the Apex Court delivered in B. Kandasamy Reddiar and others v. O. Gomathi Ammal, : AIR1998SC3235 wherein it is observed that

'Having heard the learned counsel for the appellants and the respondents, we are of the view that the factual aspects of the case need not be gone into as these appeals must be allowed for the simple reason that in disposing of the revision petitions, the High Court did not at all take into consideration the following proviso, which finds place under clause (e) of Section 10(3) and reads as under:

'Provided that in the case of an application under clause (C), the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweight the advantage to the landlord.'

With the above, the learned counsel for the respondent/tenant would pray for dismissing the above civil revision petition with costs.

17. An over all assessment of the facts and circumstances pleaded and brought forth in evidence by both parties to the contest and in consideration of the orders made by the Rent Controller and the Rent Control Appellate authority as well and upon hearing the learned counsel for both, what is gathered is that the landlord has filed the petition before the Rent Controller for eviction of the tenant on as many as four grounds, out of which, on enquiry, the Rent Controller himself has rejected the first three grounds such as the wilful default in payment of rent, committing the acts of waste and nuisance, but allowed the petition on the sole ground of requirement of the premises for additional accommodation of the landlord under Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act. 1960. But, on appeal, the Rent Control Appellate Authority has rejected the claim of the landlord even on the only ground under which the petition had been allowed by the Rent Controller, as aforementioned and it is only challenging and testifying the validity of the fair and decretal order passed by the Rent ControlAppellate Authority, in dismissing the appeal, requiring an eviction order, the landlord has come forward to file the above civil revision petition on grounds such as (i) that the Court below failed to note that there is no proper access to the rear portion of the premises occupied by him and that the front portion is required for his occupation; (ii) that the lower appellate Court totally failed to consider the specific access of the landlord that the front portion was rented out to the respondent only on the specific understanding that the occupation would be temporary and (iii) that the appellate Court failed to note that as compared, the inconvenience and difficulties of the landlord are much more than that of the tenant.

18. The main contention of the lower appellate Court for rejecting the claim of the petition is that there was no definite pleading for requiring the premises for his additional accommodation under Section 10(3)(c) of the Act nor any proper evidence let in to the satisfaction of the Court so as to maintain the application on that ground; that on facts also, the building occupied by the tenant is entirely different from that of the building occupied by the landlord being different apartments bearing different door numbers and having different access and that the requirement of the premises by the landlord for his additional accommodation is only a hoax and the claim is not genuine.

19. The learned counsel for the petitioner would authoritatively argue citing the legal propositions regarding the argument of the other side for having not filed the petition under the proper provision of law showing that there is no bar seeking a non- residential premises for the residential occupation as additional accommodation.

20. So far as the argument of the learned counsel for the petitioner regarding those two points is concerned, there cannot be any controversy since it is already a well settled law that on account of misquoting the provision of law, a party does not become disentitled to get the relief sought for, provided he is otherwise entitled for the same on facts and on proof. It is also further well settled that the building being non-residential one and the other part in occupation of the landlord being used for residential purposes, there cannot be any objection whatever to the passing of an order for eviction under Section 10(3)(c) of the Act.'

21. Even though the Rent Control Appellate Authority has based his argument for rejecting the contention of the landlord on the above two points, still, the whole case does not rest on these two points alone. But, on facts and on proof of the case in evidence and in the context of the requirements of law, the case of the tenant is that the claim of the landlord seeking eviction for additional accommodation has neither been pleaded strongly nor proper oral or documentary evidence let in proof of the same with preponderance of probability so as to order eviction under the relevant provision of law.

22. A perusal of the averments of the Rent Control original petition would reveal that for requiring the premises for his additional accommodation, the landlord would simply allege that 'the premises in which he is residing along with his family members is not accommodative and therefore herequires the petition mentioned premises for personal occupation also.' Barring the above, there is absolutely no pleading regarding either the hardships that are being undergone by the landlord in the present place, which he occupies for his residential purposes or regarding the advantages that he is going to have in evicting the tenant and making use of that portion also for his purposes. Even in evidence, he would only say that it is convenient for him to gain access into his residential building through the building in occupation of the tenant and has not brought forth the advantages that he is going to have in evicting the tenant and annexing the premises with that of his residential premises.

23. All the judgments cited by the learned counsel for the respondent/tenant are pointed to the proviso to Section 10(3)(c) which reads

'provided that in the case of an application under Clause (c), the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to thelandlord.'

Unless the requirements of the said proviso to the Section are satisfied with proper and adequate evidence in a convincing manner, a petition filed under the relevant section for eviction of the tenant cannot succeed.

24. It is not in controversy that the tenant is running a photo studio in the premises and it is his case that he is eking out his livelihood from out of the said business. Needless to point out the hardships that the tenant will have to undergo in setting up his business in a different place wherein his interests would suffer in a great deal. Besides failing to lead rebuttal evidence in this regard, the landlord in the case in hand has also failed to prove on his part as to what are the advantages that he is going to have much less in proof of how it would outweigh the hardships of the tenant. It is an open case that absolutely no material evidence, either less by way of documentary evidence or even by strong oral evidence has been placed by the landlord in proof of his case and it would not be unfitting to say that the landlord, at this end, has proved to be a miserable failure. There is no wonder that the Rent Control Appellate Authority has rejected the claim of the landlord requiring the premises for his additional accommodation under Section 10(3)(c) of the Act. There is no patent error or perversity in approach seen in the conclusions arrived at by the Rent Control Appellate Authority and I see no valid or tangible reason to interfere with the well considered and well merited judgment and decree passed by the Rent Control Appellate Authority.

In result, the above civil revision petition fails and the same is dismissed. The judgment and decree dated 26.3.1994 made in R.C.A. No. 17 of 1992 by the Rent Control Appellate Authority and the Court of Subordinate Judge, Ranipet is hereby confirmed.

However, in the circumstances of the case, there shall be no order as to costs.


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