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R.D. Shawani Vs. Mahaveer Banians Stores and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1977)1MLJ25
AppellantR.D. Shawani
RespondentMahaveer Banians Stores and ors.
Cases ReferredSattaiah v. Custodian
Excerpt:
- - the evidence on record, such as exhibits p-7, p-8, p-9, p-10 and p-11 clearly prove the increasing business of the petitioner. further, from the fact that the respondents have some portion in the suit premises directly under the owner of the suit premises and also from exhibits p-7 to p-11, which reveal the expanding business of the petitioner, i am satisfied that the claim of the petitioner is bona fide and that the hardship that will be caused to the respondents will not in any way outweigh the advantage that will accrue to the petitioner, and on the other hand the respondents will not in any way be affected by the order of eviction......the appellate authority, the landlord has preferred the above revision petition.6. thiru raju, the learned counsel appearing for the revision petitioner, contended that the petitioner filed the eviction petition on 16th october, 1972, that the same was allowed on 11th september, 1974, that g.o. ms. no. 1998 exempting trust buildings from the operation of the rent control act is, dated 12th august, 1974 and that as such the said government order will not affect pending proceedings. admittedly, the eviction petition was filed much earlier to the passing of g.o. ms. no. 1998, dated 12th august, 1974. thiru raju, the learned counsel appearing for the petitioner cited a decision rendered by me in c. sebastian v. r.c. diocese, madurai : (1976)1mlj435 . to substantiate his contention on this.....
Judgment:

P.R. Gokulakrishnan, J.

1. The revision petitioner is the landlord. He filed H.R.C. No. 1297 of 1972 against the respondents for eviction on the ground of additional accommodation under Section 10 (3)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act in respect of a portion at Door No. 100, God own Street, Madras-1. The contention of the petitioner herein that the respondents are only licensees who got into the portion paying Rs. 8,000 for a period of eleven months was given up even at the time of filing the eviction petition owing to the fact that the respondents in their reply notice took the stand that they are only licensees under the petitioner. Treating the respondents as tenants, the petitioner filed the eviction petition, as stated above. After terminating the tenancy by giving one month's notice ending with 30th April, 1972, alleging that he bona fide required the portion under the occupation of the respondents for his additional accommodation, the petitioner filed the eviction petition. The respondents in their counter statement objected to the stand of the petitioner herein treating them as his tenants, stating that inasmuch as the petitioner has stated that the respondents are only licensees, the petitioner should not have unilaterally converted the licences into one of lease. Nevertheless the respondents throughout their counter statement put forth their defence as if they are tenants. The respondents further contended that there is lack of bona fides in the requirement of the portion for additional accommodation, that the tenancy is an oral one and as such the termination notice issued by the petitioner is defective and that the petitioner himself being the chief tenant, cannot have the benefit of Section 10(3)(c).

2. The Rent Controller, after elaborately. discussing the evidence on record, came to the conclusion that the respondents herein are tenants under the petitioner, that the tenancy is a monthly one, that the termination of the tenancy is valid that the requirement of the petitioner of the portion for additional accommodation is bona fide and that the respondents must vacate and deliver vacant possession of the portion to the petitioner. The Rent Controller gave a month's notice for vacating and delivering vacant possession to the petitioner.

3. Aggrieved by the order of the Rent Controller, the respondents preferred an appeal to the Third Judge, Court of Small Causes, Madras, who is the Appellate Authority. Before the Appellate Authority the respondents filed an affidavit stating that as per G.O. Ms. No. 1998, dated 12th August, 1974 the building in question has been exempted from the Rent Control Act and that as such the eviction proceeding must stand dismissed. Along with the said affidavit the respondents also filed documents to prove that the building in question is a Muslim trust property. The petitioner filed a counter before the Appellate Authority stating that the case of trust property is a belated one, that the suit premises is not affected by the said Government Order, that the respondents cannot get any benefit under the said Government Order, that the petitioner is entitled to pursue the appeal and execute the order of eviction passed by the Rent Controller and that in any event the Government Order will not affect the appeal before the Appellate Authority.

4. The Appellate Authority allowed the appeal, observing that in view of the Notification issued by the Tamil Nadu Government on 21st August, 1974 exempting the building from the operation of the Tamil Nadu Buildings (Lease and Rent Control) Act, the eviction petition was not maintainable. Nevertheless the Appellate Authority upheld the finding of bona fide requirement of the petitioner for additional accommodation.

5. Aggrieved by the decision of the Appellate Authority, the landlord has preferred the above revision petition.

6. Thiru Raju, the learned Counsel appearing for the revision petitioner, contended that the petitioner filed the eviction petition on 16th October, 1972, that the same was allowed on 11th September, 1974, that G.O. Ms. No. 1998 exempting trust buildings from the operation of the Rent Control Act is, dated 12th August, 1974 and that as such the said Government Order will not affect pending proceedings. Admittedly, the eviction petition was filed much earlier to the passing of G.O. Ms. No. 1998, dated 12th August, 1974. Thiru Raju, the learned Counsel appearing for the petitioner cited a decision rendered by me in C. Sebastian v. R.C. Diocese, Madurai : (1976)1MLJ435 . to substantiate his contention on this legal issue. Thiru Raju, the learned Counsel appearing for the petitioner, took me through the orders of the Courts below and also through the evidence on record and substantiated the case of bona fide requirement of the petitioner for additional accommodation in respect of the building in question.

7. Thiru K.N. Balasubramanian, the learned Counsel appearing for the respondents, putting forth all the contentions raised by the respondents in the counter statement before the Rent Controller, submitted that inasmuch as the decision of the Rent Controller is subsequent to the passing of the Government Order the matter cannot be taken as pending proceeding and as such the decision in C. Sebastian v. R.C. Diocese, Madurai : (1976)1MLJ435 . can be distinguished on the facts of the present case. The learned Counsel also submitted that G.O. Ms. No. 1998 dated 12th August, 1974 will squarely apply to the case on hand and the eviction proceeding has to be- dismissed. It was further submitted by the learned Counsel that inasmuch as the petitioner has filed a suit against the respondents before the City Civil Court for delivery of vacant possession on the strength of G.O. Ms. No. 1998, dated 12th August, 1974, the petitioner is estopped from putting forth the contention that the said Government Order will not affect a pending proceeding.

8. I have perused the orders of the authorities below and also the evidence on record. It is clear from the facts of the case, as admitted by the respondents in their reply notice that the respondents are tenants under the petitioner. So it is not correct to state that the petitioner has unilaterally treated the licence granted to the respondents as one of lease. It is the respondents who want to wriggle out of the situation by blowing hot and cold just to escape the order of eviction that may be passed against them. The evidence on record, such as Exhibits P-7, P-8, P-9, P-10 and P-11 clearly prove the increasing business of the petitioner. It is also clear from the evidence on record that the respondents are also having some portion in the suit premises as direct tenants from the owner of the trust. Taking all these aspects into consideration, the Tribunals below have concurrently found that the petitioner's requirement for additional accommodation is bona fide. I have perused the evidence on record and I come to the conclusion that the requirement of the petitioner is bona fide, for additional accommodation. Further, from the fact that the respondents have some portion in the suit premises directly under the owner of the suit premises and also from Exhibits P-7 to P-11, which reveal the expanding business of the petitioner, I am satisfied that the claim of the petitioner is bona fide and that the hardship that will be caused to the respondents will not in any way outweigh the advantage that will accrue to the petitioner, and on the other hand the respondents will not in any way be affected by the order of eviction.

9. As regards the question of the Government Order referred to above affecting the maintainability of the eviction proceeding before the Rent Controller and the Appellate Authority, the matter has been dealt with in C. Sebastian v. R.C. Diocese, Madurai : (1976)1MLJ435 . In that case, referring to the very same G.O. Ms. No. 1998, Home, dated 12th August, 1974, I have held that the Court has jurisdiction to continue the Proceedings which arose much earlier to the passing of the Government Order, referred to above. Thiru K. N. Balasubramanian, the learned Counsel appearing for the respondents, submitted that by the time the Government Order was passed exempting that property from the purview of the Rent Control Act, there was no decision rendered by the Rent Controller and as such the case in C. Sebastian v. R. C. Diocese, Madurai : (1976)1MLJ435 . is distinguishable. In that case, the Rent Controller had already passed an order. In these circumstances, the learned Counsel submitted that the Court held that the Government Order is not applicable to pending proceedings. The learned Counsel further submitted that inasmuch as the Government Order referred to above came into being before the passing of the order by the Rent Controller, the matter cannot be taken as one in pending proceedings and as such the eviction petition has to be dismissed.

10. To substantiate the contention put forth by the respondent, Thiru K. N. Balasubramanian, the learned Counsel appearing for the respondents, referred to Keshoram Poddar v. Mundo Lal Mallick . I do not think the decision in that case can be successfully invoked in favour of the respondents. That was a case where the Privy Council reversed the judgment of the High Court holding that even a temporary Act, if it is extended, would be deemed to be in force without any break up till the extended time and that the application of the Act is taken as on the date when the parties begin to move under it. Taking this proposition into consideration, admittedly the petitioner herein moved the Rent Controller much earlier to the passing of G.O. Ms. No. 1993. The eviction petition was filed on 16th October, 1972, while the Government Order is, dated 12th August, 1974.

11. The next case referred to by Thiru K. N. Balasubramanian is Shikharachand v. D.J.P. Karini Sabha : [1974]3SCR101 . This is referred to for the purpose of stressing- the point that the Court must take into consideration supervening circumstances in order to mould the decree in the suit in the interests of justice. The Supreme Court in the said decision has observed:

Ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a Court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed has (1) by reason of subsequent change of circumstances becomes inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties.

12. The contention of the learned Counsel is basically wrong. The construction of a Government Order as to whether it affects a pending proceeding or not, cannot be considered as a 'supervening circumstance' to enable a party to take advantage of a Government Order, which has no retrospective effect.

13. The next point stressed by the learned Counsel appearing for the respondent is that the petitioner has filed a suit before the City Civil Court praying for eviction of the respondents herein. On the ground that the civil Court has jurisdiction to order such eviction and as such the petitioner is estopped from continuing the present proceeding as if the Tamil Nadu Buildings (Lease and Rent Control) Act alone would apply to the case. Thiru Raju, the learned Counsel for the revision petitioner, submitted that in order to save time and without prejudice to the contentions in this civil revision petition the said suit was filed and as a matter of fact, paragraph 6 of the plaint filed in the said suit runs as follows:

The plaintiff has since filed a civil revision petition against the order in H.R.A. No. 495 of 1974 being C.R.P. No. 3336 of 1975 disputing the correctness of the said decision of the appellate authority. However by way of abundant caution and in order to avoid loss of time the plaintiff is also filing; this suit in this Honourable Court for evicting the defendant from the premises under the General Law. The plaintiff is instituting this suit without prejudice to his claims in C.R.P. No. 3336 of 1975 referred to above.

Thus, it is clear that there is no question of estoppel as pleaded by the respondents.

14. Mr. Raju, the learned Counsel for the petitioner asserted that the Government Order in question is not applicable to the present case and that once the eviction petition was instituted before the passing of the Government Order, the same must be construed as a 'Pending Proceeding' irrespective of the fact that an order was passed or not by the Rent Controller. The learned Counsel cited the decision in Popatlal Gokulchand v. Ramachandra Narayana Rao wherein, Hidayatullah, J. (as he then was) held that a legislation effecting substantive rights is always prospective and does not affect pending proceedings and that there must be specific words in the legislation making it retrospective or otherwise the legislation is always considered to be prospective. The next case cited by Mr. Raju is Sattaiah v. Custodian, E.P. : AIR1961AP477 . where a Bench of the Andhra Pradesh High Court has held:

No amendment to a statute is retrospective unless there is anything in the Amending Act which either expressly or by necessary implication leads to that conclusion. This principle is embodied in Section 6 of the General Clauses Act (X of 1897). The Amendment of Section 10 (2)(m) by Section 4 of the Administration of Evacuee Property (Amendment) Act (XCI of 1956) and the consequent deletion of Rule 22 of the Administration of Evacuee Property (Central) Rules, 1950, is not retrospective in operation. Hence where a third party claim for a decretal debt against an evacuee is registered with the custodian prior to the coming into force of the Amendment Act, the decree-holder's right to have the decree debt due by the evacuee paid out to him is not affected in any way by such amendment and he would be entitled to have his claim against the properties of the evacuee considered on the merits by the Custodian under the unamended Act.

From these principles laid down in the above two decisions it is clear that G.O. Ms. No. 1993, Home, dated 12th August, 1974, will not affect the Rent Control proceeding started by the petitioner much earlier than the coming into force of the said Government Order.

15. In the foregoing paragraphs I have already discussed the bona fides of the landlord in claiming additional accommodation. Even though the Appellate Authority has not elaborately discussed the (bona fides of the landlord in claiming additional accommodation, both the Authorities below have concurrently found bona fides in such a claim. In the paragraphs supra I have in detail considered the question of bona fides in relation to the evidence on record and I am convinced that the landlord bona fide requires the portion of the building in the occupation of the respondents for his additional accommodation.

16. In these circumstances, the civil revision petition is allowed. There will be an order of eviction against the respondents herein as prayed for by the petitioner in H.R.C. No. 1297 of 1972. Time to vacate three months. There will be no order as to costs.


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