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Associated Traders Vs. M.A. Abdul Hameed - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 3886 of 1981
Judge
Reported inAIR1984Mad21; (1983)IIMLJ538
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 10(3) and 19; Code of Civil Procedure (CPC), 1908 - Sections 11
AppellantAssociated Traders
RespondentM.A. Abdul Hameed
Appellant AdvocateK. Venkataswami and ;V. Subramaniam, Advs.
Respondent AdvocateA.J. Abdul Razack, Adv.
Cases ReferredYamuna Bai v. Rangasami
Excerpt:
tenancy - eviction - sections 10 (3) and 19 of tamil nadu buildings (lease and rent control) act, 1960 - whether petition for eviction filed by respondent barred by res judicata under section 19 and liable to be dismissed in limine - earlier application filed under section 10 (3) (a) for additional accommodation was dismissed on ground that it was not maintainable - present application filed under section 10 (3) (a) (iii) for owners occupation - section 10 (3) (a) (iii) and section 10 (3) (c) come into operation under different set of circumstances - eviction petition not barred by section 19. - - 10(3)(c) of the act has been clearly brought out by varadarajan j. (c) the controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by..........short the act). the respondent is the owner of premises no. 12 mooker nallamuthu st, madras. the revision petitioners are tenants under the respondent in respect of a portion of the western side in the ground floor of the said premises. the said potion has been let out to the petiitoners by the respondent for non-residential purposes on a monthly rent of rs. 600/-. the respondent is occupying a portion of the premises for residintial purposes. the respondent is carrying on business in partnership with other family members in the name and style of t. s. c. sanitaries in premises no. 128 thambu chetti st. madras. apart from the said business the respondent has also taken up agency for colourcem for the state of tamil nadu and pondicherry. the said premises in which the respondent is.....
Judgment:

Padmanabhan, J.

1. This civil revision petition areises under the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 as amended by Tamil Nadu Act 23 of 1973. ((for short the Act). The respondent is the owner of premises No. 12 Mooker Nallamuthu St, Madras. The revision petitioners are tenants under the respondent in respect of a portion of the western side in the ground floor of the said premises. The said potion has been let out to the petiitoners by the respondent for non-residential purposes on a monthly rent of Rs. 600/-. The respondent is occupying a portion of the premises for residintial purposes. The respondent is carrying on business in partnership with other family members in the name and style of T. S. C. Sanitaries in premises No. 128 Thambu Chetti St. Madras. Apart from the said business the respondent has also taken up agency for Colourcem for the State of Tamil Nadu and Pondicherry. The said premises in which the respondent is carrying on business belongs to one Abdul Khader, his brother. Since the respondent is not occupying a building of his own for carrying on business he filed H. R. C. 308 of 1980 on the file of the Rent Controller, Madras for eviction of the recision petitioners under Sec. 10(3)(a)(iii) of the Act.

2. The revision petitioners, among others, raised a contention that the respondent had on an earlier occasion filed a similar petition for eviction in HRC No. 744 of 1976 under Sec. 10(3)(c) for additional accommodation. The Rent Controller passed an order for eviction. The revision petitioners filed H. R. A. 939 of 1978. The appellate authority by its judgment dated 17th JuIy 1979 set aside the order of eviction passed by the Rent Controller and dismissed the eviction petition. According to the revision petitioners the present petition for eviction is barred by res judicata by the judgment dt. 17th July 1979 in H. R. A. 939 of 1978. Besides, the revision petitioners have also contended that the respondent is not entitled to an order for eviction on the merits also.

3. The learned Rent Controller deal with the question of res judicata as a preliminary issue and held that the petition for eviction was not barred by res judicata under Sec. 19 of the Act. The revision petitioners then filed H. R. A. 1231 of 1980. The appellate authority by its judgment dt. 20th June 1981, confirmed the order of the Rent Controller and dismissed the appeal preferred by the revision petitioners. Hence this revision petition.

4. The short question arises for consideration is whether the present petition for eviction filed by the respondent is barred by res judicata under Sec. 19 of the Act and is liable to be dismissed in limine.

5. Before answering the question of law raised bv the learned counsel for the revision petitioners, it is necessary to state a few facts. H. R. C. 744 of 1976 was filed by the respondent against the revision petitioners under S. 10(3)(c) of the Act. In that the respondent alleged that he was carrying on business at No. 41 Tharnbu Chetti St, Madras. in partnership with his other family members and that be required the premises by way of additional accommodation for using the place as a godown for his business purposes. The revision petitioners in their counter affidavit contended that tke respondent was owning a number of buildings and that his requirement for additional accommodation was not bona lide. The respondent also filed HRC No. 1086 of 1974 under S. 10(2)(i) of the Act an the ground of wilful default in the payment of rent, with which we are not concerned here, the Rent Controller found that the respondent bona fide required the premises for additional accommodation and that the relative hardship that would be caused by eviction of the revision petitioners would outweigh the advantage to the respondent by ordering eviction. In the result, the Rent Controller ordered eviction. Against the order of eviction, the revision petitioners filed two appeals H. R. A. 939 of 1978 against H.R.C. 744 of 1976 and HRA 940 of 1978 against H.R.C. 1086 of 1976. We are concerned only with H. R. A. 939 of 1978. The Appellate Authority set aside the order of evtctilon and dismissed the eviction petition. The Appellate Authority took the view that inasmuch as the respondent was not occupying any portion of the premises for non-residential purposes, but was only inoccupation of a portion of the premises for residential purposes, he was not entitled to maintain an application for eviction under Sec. 10(3)(c) of the Act for additional accommodation ter the puspose of carrying on his business. In this connection, the Appellate Authority relied upon a decision of this Court in Nilgiri Dairv Farm v. Manotiaran : (1978)1MLJ357 . It may also be incidentally mentioned that the Appellate Authprity gave a finding that the respondent required the non-residontial portion for the purpose of running his business and a further finding that if the revision' petitioners were evicted they would be put to heavy loss and thev could not secure a non-residential portion to run their business and that the hardship that might be caused to the revision petitioners if evicted wou'd outweigh the advantage to the landlord.

6. The learned counsel for the revision petitioners strenuously contended that in view of the fact that the Appellate Authority had found on the earlier occasion that the hardship that might be caused to the revision Petitioners, if evicted, would outweigh the advantage to the respondent and in view of the fact that the earlier petition had been dismissed the present Petition was barred by Sec. 19 of the Act.

7. The question for consideration therefore is whether the Present petition for eviction is barred by res judicata. As already stated the present petition for eviction is filed under S. 10(3)(a)(iii) of the Act which is to the following effect:-

'A landlord may, subject to the provisions of cl. (d), apply to the Rent Controller for an order directing the tenant to put the landlord in possession of the building - (iii) in case it is any other non-residential building, if the landlord or any member of his family is not occupying for purposes of business which he or any member of his family is carrying on, a non-residential building in the city, town or village concerned which is his own.

Proviso omitted.'

The elements necessary to enable the landlord to obtain an order for eviction of a non-residential building under the above provision are following :-

1. The building should be non-residential in character.

2. The landlord should be carrying on business on the date of application for eviction.

3. The landlord should not be in occuption of any other non-residential building belonging to him in respect of the business.

4. The landlord's claiwi'must be bdna fide for his business needs and should not be founded on any other oblique motive for evicting the tenant either with a view to obtain more rent than the premises already fetched or with a view to harass the tenant in possession.

5. The landlord can also obtain an oriler for evction if any member of his family also needs the premises for carrying on any business.

It is under the above provision that the present petition for eviction has to be filed by the respondent landlord. In order to obtain the order of eviction the landlord must satisfy the conditions mentioned in the above provision.

8. On the other hand, H. R. C. 744 of 1976 was filed under Sec. 10(3)(c) of the Act which reads thus-

'A landlord who is occupying only a part of building, whether residential or non-residential, may, notwithstanding anything contained in clause (a), apply to the Controller for an order directing any tenant occupying the whole or any partion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business which lip is carrying on art the case may be.'

It is s een from the non-obstante clause in Sec. 10(3)(c) that Sec. 10(3)(c) is different from Sec. 10(3)(a)(iii) and each sub-section will come into operation under different circumstances. Whereas Sec. 10(3)(a)(iii) concerns with the whole building in occupation of a tenant which is distinct and senarate from the non-residential building in the occupation of the landlord. Section 10(3)(c) contemplates that both the landlord and the tenant are in occupation of the same building and that the landlord by virtue of the fact that he requires additmnal accommodation for his business seeks eviction of the tenant.

In Narayanaswami Iyer v. Swami : AIR1956Mad412 while dealing with Sec. 7 (3) (a) (iii) and Sec. 7 (3) (c) of the Madras Act 25 of 1949. Panchapakesa Ayyar J. held :-

'In order to attract the provisions of S. 7(3)(a) of the Madras Buildings (Lease and Rent Control) Act where a landlord seeks to evict a tenant on the ground that he required additional accommodation the accommodation required should be part of the same building, a portion of which is in his occupation and the other portion is in the occupation of the tenant whom he seeks to evict. Where the additional accommodation sought for is not part of the same building S. 7 (3) (a) will not apply, which is restricted to other parts of the same building. The 'notwithstanding clause' in the sub-clause makes it clear that S. 7 (3) (a) will apply to cases where Sec. 7 (3) (c) would not.'

Veeraswarni J. (as he then was) in A. P. Kumaraswami Chettiar and Arumugham Pillai v. A, M. Paramasivam. Mudaliar, (1966) 79 MLW 4 held that the mere fact that the land:ord was in occupation of another building far purposes of his business would not bar him from obtaining relief under Cl. (c) of S. 10(3) and that was the effect of the non obPtante clause in. Cl. (c). The learned Judge held that the word 'only' in the clause did not imply that he should not be in occupation of any other building for the application of Cl. (c) and its only meaning, in the context was that he ww in occupation of nothing more than a part of the building.

9. The distinction between S. 10(3)(a)(iii) and S. 10(3)(c) of the Act has been clearly brought out by Varadarajan J. (as he then was) in Nilgiri Dairy Farm v. Manoharan : (1978)1MLJ357 The landlord filed eviction petition for eviction of the tenant on the ground that he required a portion of the same building for his business. The tenant opponed the petition contending that the landlord ,was not carrying on any business and therefore was not entitled to seek eviction on the ground of additional accommodation under S. 10(3)(c) of the Act. The learned Judge held as follows:-

'It is not possible to agree with the learned counqel for the respondent that the words 'carrying on business' occurrmg in Sec. 10(3)(a)(iii) of the Act shouldb be construed in the manner as similar words in Sec. 10(3)(c) in the Act had been construed by the court as in the above two decisions. It is enough to give two reasons in support of the view. The first is that Sec. 10(3)(c) deals with additional accommodation which implies that the accommodation which is already in the occupation of the landlord for the purposes of the business which he is carrying on is not sufficient; necessitating additional accommodation by evicting the tenants from other portions of the game building which are in their occupation. The second is that the question of relative hardship or advantage does not arise for consideration in cases governed by S. 10(3)(a) of the Act, while it does arise for consideration in cases governed by S. 10(3)(c) of the Act. The proviso to that section provides that in the case of an application under Cl. (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 the landlord. Therefore, I agree with the learned counsel for the petitioners that as the respondent is not occupying any portion of the building for the purpose of any business at present, he is not entitled to seek eviction of the petitioners in this case on the ground of additional accommodation.'

10. It is therefore clear that for the purpose of getting an order of eviction of a tenant tinder S. 10(3)(c) of the Act, the landlord must be occupying a portion of the building for the purpose of his business and must be requiring the tenanted premises of the same building as additional accommodation for the purpose of his business which he is carrying on. If he is not occupying any portion of the building for the purpose of his business, he would not be entitled to maintain an application for possession of the premises for additional accommodation under S. 10(3)(c) of the Act.

11. At this stage, it may be mentioned that H. R. C. 744 of 1976 was dismissed by the Appellate Authority on the ground that the respondent was not entitled to recover possession of the portion in the occupation of the revision petitioners since the respondent was noi carrying on any business in the said premises and consequently he was not competent to maintain a petition under S. 10(3)(c) of the Act for recovery of possession of the said premises for additional accommodation for a non-residential purpose.

12. Section it of the Act reads as follows-

'Any application under S. 3-A or S. 12. and any application under sub-sec. (2) or sub-sec. (3) or sub-sec.(3-A) of S. 10 or under Ss. 14, 15 and 16, shall be summarilv rejected by the Authorised Officer or the Conteoller, as the case may be, if such, application raises between the same parties as between parties under whom they or any of them claim, substantially the same issue as have beer finally decided or as purport to have been finally decided. in a formal proceeding -

(i) under this Act, or

(ii) under any other law from time to time in force before the date of the commencement of this Act and relating to matters dealt with in this Act.'

13. This section enacts a rule of res judicata and is intended to bar frivolous applications for eviction being filed by landlords against the tenants repeatedly on the sarne grounds. In order to attract S. 19. it is requisite that there must be identity of issue in the two proceedings and that the former proceedings must have been decided on the very issues which arise for adjudication in the later proceedmigs or must PurPort to have been finally decided. In Dr. N. R. Rao v. Premier Auto Electric Pvt. Ltd (1973) 86 MLW 649 a Bench of this Court observed thus-

'The Act by S. 19 makes certain decision arrived at bv the Tribunal under the Act final. It says that the Controller shall reiect an application summarily, if it raised between the same parties or between parties under whom they or any of them claimed, substantially the same issues as he had been finally decided or as purported to have been finally decided, in a former proceeding under the Act.'

14. In the said case, the Bench held that the issues arising for consideration under Cl. (a) and Cl. (b) of S. 10(2)(iii) of the Act was not the same, but different and consequently if an application for eviction under Cl. (a) was rejected, an application for eviction under Cl. (b) would be maintainable.

15. Viewed in the light of the above provisions of law we are of the opinion that S. 19 of the Act would not operate as a har to the maintainablity of the present petition for eviction filed by the respondent under S. 10(a)(iii) of the Act. As we have already said, S. 10(3)(a)(iii) and S. 10(3)(c) would come into operation under different sets of circumstAaces. in order to justify an oeder for eviction urder S. 10(3)(a)(iii) of the Act the landlord must satisfy the Rent Controller that he or any member of his family is not occupying for purposee of the business which he or any member cd his family is carrying on, a non-resideitial building in the city, town or village converried and that therefore he or the member of his family needs the said building bona fide for the said business. On the other hand in order to maintain a petition under S. 10(3)(c) of the Act, the landlord must be in occupation o! a portion of the building for the non-residential purpose and he must require the portion of the same building which is in the occupation of the tenant by way of additional accommodation for the purpose of his business. Thus, it is clear the causes of action contemplaled by the two sub-sections are different and exclusive. In the circumstances, when an application for eviction of a tenant under S. 10(3)(c) is rejected on the ground that he is not in ocupation of a portion of the building for the business which he is carrying an and therefore he is not entitled to evict the tenant who is in possession for a non-residential purpose that fact cannot prevent the landlord from maintaining any application under S. 10(3)(a)(iii) of the Act, for eviction of the tenant on the ground that he or any member of his family is not occupying for the purpose of a business which he or any member of his family is carrying on, a non-residential building which is his own. Any decision given by the Rent Controller on an application under S. 10(3)(c) cannot therefore operate as a bar under S. 19 to an application for eviction filed under S. 10(3)(a)(iii) of the Act. Apart from this, on the facts of this case, it has to be noted that H. R. C. 744 of 1976 was dismissed as not maintainable by the Appellate Authority on the ground that the respondent was only occupying a portion of the premises for residential purpose and was not carrying on any business in the said premises and therefore he could not recover possession of the -portion which was in the occupation of the revision petitioner for non-residentiaI purposes. There was no adjubication on the merits with regard the points that would arise for consideration when the respordent claims that he needs the premises for the purpose of the business which he is carrying on under S. 10(3)(a)(iii) of the Act. The learned counsel for the revnsion petitioners heavily relied on the fact that the Appellate Authiority in H. R. C. 939 of 1978 had Categorically found that the disadvantage that might be caused to the revision petitioners by beino asked to be evicted would outweigh the advantam that nught accrue to the respondent. The question whether the hardship that might be caused to a tenant by granting an order of eviction will outweigh the advantape to the landlord will arise only in dealing with an application under Section 10(3)(c) of the Act filed by the landlord for addtional accommodation. When the application by the landlord is itself dismimed as not maintainable the Appellate Authority had no jurisdiction to give any finding as to whether the hardship that might be caused to the tenant by granting the application would outweigh the advantage to the landlord. In the circumstances we are of the opinion that the finding that was given by the Appellate Authority and heavily relied upon by the learned counsel for the petitioners are obiter. Similarly, when once the Appellate Authoritv had come to the conclusion that the application for evietion of the revision petitioners was not maintainable under Section 10(3)(c) of the Act inasmuch as the respondents not carrying on any business in any portion of the building the Appellate Authority was equally not corapetent to go into the question whether the respondent needed the premises for the purpose of the business which he was carrying on. We are therefore of the view that the present petition for eviction filed under S. 10(3)(a)(iii) of the Act is not barred by S. 19 of Ofe Act by the principle of res judicata enacted in the section.

16. The learned counsel for the revision petitioners cited the decision in Yamuna Bai v. Rangasami, : (1977)1MLJ223 . There, an earlier application filed by the landlord tinder S. 14 of the Act. for demolition, and reconstruction was dismissed. The landlord filed another application under S. 14 of the Act, alleging chanaed circumstances. It has been held -

'If any order has been passed under Sec. 14 of the Tamil Nadu Buildings (Lease and Rent Control) Act between the same portios, then the same issue which ha d been finally decided cannot be raised again in a later instituted action on the ground that circumstances had allegedly changed .... In such circumstances, only S. 19 operates and the well known principle of res judicata prevents the landlord or the landlady as the case may be from pursuing but at a belated stage. An application for the grant of a similar relief. It is this that is prevented by law under S. 19 of the Act.'

This case is of no assistance to the learned counsel for the revision petitioners as in this case the earlier application was filed under S. 10(3)(a) of the Act for additional accommodation and that was dismissed on the ground that it was not maintainable and the present application has been filed under S. 10(3)(a)(iii) for owners occupation and as we have already said S. 10(3)(a)(iii) and S. 10(3)(c) would come into operation under different sets of circumstance.

17. In this view of the matter we confirm the orders passed by the courts below and dismiss the revision petition. The Rent Controller will dispose of H.R.C 306 of 1980 on the merits without in any manner being influenced by the findings given by the Appellate Authority in H.R.A.1980 either in favour of the revision petitioners or in favour of the respondent. These will be no order as to costs.

18. Petition dismissed.


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