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Tikamchand Mithalal JaIn Vs. M.R. Narasimhachari - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 392 of 1978
Judge
Reported inAIR1981Mad21; (1980)1MLJ523
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 10(3), 25 and 30
AppellantTikamchand Mithalal Jain
RespondentM.R. Narasimhachari
Appellant AdvocateH. Mardia, Adv.
Respondent AdvocateR. Krishnamurthi and ;A.R. Lakshmanan, Advs.
Cases ReferredDakshinamurthi v. Thurajibai
Excerpt:
.....when the premises had been let out for residential as well as non-residential purposes, the rent controller applied the ratio laid' down in moinuddin v. rukmani air1972mad263 and held that where a building has been let out for residential as well as non-residential purposes, the landlord was entitled to seek recovery of possession of the building either for residential or for non-residential purposes. on the other and, what we find is, that the petitioner has willingly subjected himself to the jurisdiction of the rent controller as well as the appellate authority, and has also filed the present revision only under section 25 of the act. over and above these things, there remains the fact that it is the admitted case of the parties that the premises was leased out for residential..........referred to as the act) against the order of eviction passed against the petitioner by the rent controller, madurai in r. c. o. p. 569 of 1975 on the file of his court and confirmed by the appellate authority (principal sub judge, madurai) in c. m. a. 146 of 1977 on the file of his court.2. the respondent, who is the landlord, leased out the petition premises some years ago on a monthly rent of rupees 485/-, the demised premises comprises a portion of the ground floor, wherein the petitioner is having his business and the entire first floor, wherein the petitioner is residing with his family. the respondent sought the eviction of the petitioner from the demised premises under section 10(3)(a)(i) of the act, on the ground that one of his sons, by name, radhakrishnan, who in a.....
Judgment:
ORDER

1. This is a revision petition preferred under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act) against the order of eviction passed against the Petitioner by the Rent Controller, Madurai in R. C. O. P. 569 of 1975 on the file of his court and confirmed by the Appellate Authority (Principal Sub Judge, Madurai) in C. M. A. 146 of 1977 on the file of his court.

2. The respondent, who is the landlord, leased out the petition premises some years ago on a monthly rent of Rupees 485/-, The demised premises comprises a portion of the ground floor, wherein the petitioner is having his business and the entire first floor, wherein the petitioner is residing with his family. The respondent sought the eviction of the petitioner from the demised premises under Section 10(3)(a)(i) of the Act, on the ground that one of his sons, by name, Radhakrishnan, who in a practicing advocate at Madurai, has married a lady doctor and they are, bona fide in need of the demised premises for their residence-cum-professional activities.

3. The petitioner resisted the petition for eviction on various grounds. He first disputed the quantum of rent and alleged that the monthly rent was only Rupees 225, and not Rs. 485. He nextly contended that since the demised premises had been leased out to him for residential as well as non-residential purposes, the landlord's application under Sec. 10(3)(a)(i) of the Act was not maintainable. He further contended that the son and daughter-in-law of the landlord were not genuinely in need of the building and the petition had been filed with an oblique motive, since he refused to pay the enhanced rent that was demanded of him by the landlord.

4. The Rent Controller rejected all the contentions of the tenant and ordered eviction. In so far as the objection raised about the landlord not being entitled to ask for possession of the building for residential purposes, when the premises had been let out for residential as well as non-residential purposes, the Rent Controller applied the ratio laid' down in Moinuddin v. Rukmani : AIR1972Mad263 and held that where a building has been let out for residential as well as non-residential purposes, the landlord was entitled to seek recovery of possession of the building either for residential or for non-residential purposes.

5. The Appellate, Authority affirmed the view taken by the Rent Controller, and pointed out that as per the decisions in Dakshinamurthi v. Thulajibai : AIR1952Mad413 , where the court finds the letting to be equally for residential and non-residential purposes and not mainly or substantially for the one or the other kind of purpose the application by the landlord would be maintainable either under Section 7 (3) (a) (1) or Section 7 (3) (a) (ii) of the old Act, corresponding to Secs. 10(3)(a)(i) and 10(3)(a)(ii) of the present Act. The Appellate Authority also found that the landlord bona fide required the premises for the occupation of his son and daughter-in-law, and therefore, the tenant was bound to vacate the premises. Accordingly, he confirmed the order of eviction passed by the Rent Controller.

6. In the revision petition, Mr. Himmatlal Mardia, learned counsel for the petitioner, repeated the contentions that were put forward by the tenant before the Rent Controller and the Appellate Authority, and raised a further contention that in view of Section 30 of the Act, the Rent Controller had no jurisdiction to entertain the petition filed by the landlord.

(In paragraph 7 of the Order the evidence regarding. the bona fides of the landlord's requirement was considered and upheld).

8. Before dealing with the second of the contentions of Mr. Mardia, I will deal with the new ground of objection raised in the revision petition. This objection does not find a place in the grounds of revision and is put forward only at the time of arguments. The argument of Mr. Mardia runs thus - under sub-clause (ii) of Section 30 of the Act, nothing contained in the Act will apply to any residential building or part there of occupied by any one tenant, if the monthly rent paid by him in respect of that building or part exceeds Rs. 400/-. Placing reliance on this provision, Mr. Mardia argued that the landlord can treat the building either as residential or non-residential and since he required the building under Section 10(3)(a)(i), it must be taken that the demised premises would amount only to a residential building, and since according to the landlord, the rent was over Rs. 400, the provisions of the Act are not attracted and consequently, the landlord can only file a suit in ejectment in the civil court and he is not entitled to institute proceedings under the Act for eviction of the tenant His further argument was that if the landlord wanted to get over the exemption contained in Section 30 and treat the building as a non-residential one, then he should have filed his Petition under Section 10(3)(a)(ii) and not under Section 10(3)(a)(i). The contention of Mr. Mardia cannot be count enhanced for more than one reason. in the rat place, this ground of objection has to been raised before the Rent Controller or the Appellant Authority or even in he grounds of revision. On the other and, what we find is, that the petitioner has willingly subjected himself to the jurisdiction of the Rent Controller as well as the appellate authority, and has also filed the present revision only under Section 25 of the Act.

9. Secondly, the stand taken by the petitioner is, that the rent for the building was not Rs. 185/-, as claimed by the landlord, but only Rs. 225. Having taken such a stand, it is not open to the petitioner to put forth this ground of objection, since the hypothesis for the objection is a matter of controversy. It is apposite to mention here that in the proceedings instituted by the landlord, no question regarding the determination of the rent payable by the tenant arises. It was stated at the Bar that the landlord has filed a civil suit against the petitioner for the recovery of arrears of rent and even in those proceedings, the petitioner has taken the stand that the rent payable for the premises is only Rs. 225 and not Rs. 485. Therefore, for all that we know, the petitioner may succeed in his defence in the suit. It is significant to note that the petitioner does not concede in this proceeding that the rent for the premises is the figure mentioned by the landlord and not the figure mentioned by him. In such circumstances, it cannot be categorically stated that the rent for the building is more than Rs. 400 and therefore, Sec. 30 will be a bar to the action instituted by the landlord. Over and above these things, there remains the fact that it is the admitted case of the parties that the premises was leased out for residential as well as non-residential purposes. Admittedly, the petitioner is carrying on his business in a portion of the ground floor and is using the entire first floor for residential purpose, In such circumstances, the exemption contained in Section 30 will not be attracted, because it will apply to a residential building only, which is used pure and simpliciter for residential purposes and not to a building, which is put to use for residential as well as non-residential purposes. Therefore, I have no hesitation in holding that the new ground of objection raised by the petitioner is wholly devoid of merits.

10. It only remains to consider the Second of the objections put forward by the petitioner. The contention put forward is, that since the building had been let out for residential as well as nonresidential purposes, it is not open to the landlord to seek recovery of possession of the premises either for residential or non-residential purposes and the landlord cannot seek relief either under Section 10(3)(a)(i) or Section 10(3)(a)(ii). In support of this argument, Mr. Mardia placed reliance on Dr. Gopal Das Varma v. Dr. S. K. Bhardwaj : [1962]2SCR678 , and Sanyal v. Gianchand : [1968]1SCR536 . I have carefully gone through these decisions and they lend support to Mr. Mardia's contentions. However, on a little scrutiny, it becomes manifestly clear that the authorities cannot be of any help to the petitioner. Those cases were decided with reference to the provisions of Delhi and Ajmer Rent Control Act 1952. In that legislation, the wording is entirely different from the Act, and the accent in the relevant clause, viz. Section 13(1)(e) is upon the letting out of the premises for residential purposes. The words used are 'premises let for residential purpose'. On the other hand, under the, Tamil Nadu Act there is reference in Section 10(3)(a)(i) only to 'a residential building' and in Section 10(3)(a)(ii) to a non-residential building.' The purpose for which the building was let out is not placed in the forefront under Section 10(3)(a)(i) and Section, 10(3)(2)(ii). Then again, it has to be noted that the Tamil Nadu Act specifically interdicts under Section 21, the conversion of a residential building into a non residential building without the permission in writing of the Controller The relevant provisions of the Madras Buildings (Lease and Rent Control) Act 25 of 1949 viz., Sections 7 (3) (a) (i) and 7 (3) (a) (ii) have been construed by a Full Bench of this court in Dakshinamurthi v. Tulajibai : AIR1952Mad413 . After considering the various aspects of the matter elaborately, the Full Bench has held that where the court finds the letting to be equally for residential and non-residential purposes and not mainly or substantially for the one or the other kind of Purpose, the application by the landlord would be maintainable either under Section 7 (3) (a) (i) or Section 7 (3) (a) (ii) of the old Act. The Full Bench decision has been followed in Moinuddin v. Rukmani : AIR1972Mad263 , already referred to: Sections 10(3)(a)(i) and 10(3)(a)(ii) occurring in, the present Act is in pari materia with Sec. 7(3)(a)(i) and Section 7 (3) (a) (ii) of the 1949 Act. Therefore, it follows that the ratio laid down by the Full Bench will be applicable to the relevant provisions of the present Act as well. In addition, it must be noticed that the landlord seeks recovery of possession of the building not only for the residential occupation of his son and daughter-in-law, but also for purposes of their professional requirements.

11. Mr. Mardia invited my attention to an unreported decision of Suryamurthi J. in Nemichand Vajaj v. Fathima Bivi C. R. P. No. 3021 of 1974 dated 20-4-1978 (Mad). In the judgment, there is an observation that as the, building is used both as residence and for business, the provisions of Section 10(3)(a)(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act are not available to the landlord for evicting the tenant. This decision cannot advance the petitioner's case in any manner, because the observations of Suryamurthi, J. is in the nature of obiter. The landlady in that case sought eviction of the tenant on the ground of willful default in payment of rent, Section 10(2)(i) and unauthorised subletting, Section 10(2)(ii)(a). Both the grounds were not established and therefore, the petition came to be dismissed. It was only incidentally the learned Judge has made the observation about the petition being not maintainable under Section 10(3)(a)(iii) of the Act. Moreover, the judgment has not taken note of the Full Bench judgment in Dakshinamurthi v. Thurajibai, : AIR1952Mad413 . In such circumstances, both in law and on facts, the petitioner's contentions cannot be sustained. Thus, on a consideration of all factors, I find that none of the contentions of the revision petitioner has any merit in it. Consequently, the revision petition has to fail and will accordingly stand dismissed with costs. The petitioner (tenant) is given time till 31-5-1980 to vacate the premises.

12. Petition dismissed


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