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A.G. Punyakoti Vs. M. Meera Bai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1986)1MLJ345
AppellantA.G. Punyakoti
RespondentM. Meera Bai
Excerpt:
.....disturbed. section 23(3) of the act read with rule 16 of the rules, therefore, clearly enables the appellate authority to take additional evidence, or he can direct evidence to be taken by the controller. the power of permitting additional evidence to be produced at the stage of appeal must be exercised by the appellate authority judiciously, and before additional evidence is given, the appellate authority must be satisfied that such additional evidence is necessary for a proper disposal of the appeal. if any documents are to be produced, they could be permitted to be produced by way of additional evidence only if the appellate authority is satisfied that it is necessary to make a further enquiry and that there was good justification for not producing those documents before the rent..........disclose how mechanically additional documentary evidence has been accepted and acted upon by the appellate authority who was dealing with two appeals filed by the landlady and the tenant respectively. this order disposes of two revision petitions filed by the tenant challenging the order of eviction which is made against him by the appellate authority on the grounds of wilful default and bona fide need of the landlady of the premises in question for her own occupation. the rent controller had accepted the case of the landlady with regard to the wilful default, but had rejected the claim on the ground of owner's occupation. since a decree for eviction was passed, the tenant filed an appeal challenging the decree for eviction and the landlady also filed an appeal because her claim for.....
Judgment:
ORDER

M.N. Chandurkar, J.

1. These revision petitions disclose how mechanically additional documentary evidence has been accepted and acted upon by the appellate authority who was dealing with two appeals filed by the landlady and the tenant respectively. This order disposes of two revision petitions filed by the tenant challenging the order of eviction which is made against him by the appellate authority on the grounds of wilful default and bona fide need of the landlady of the premises in question for her own occupation. The Rent Controller had accepted the case of the landlady with regard to the wilful default, but had rejected the claim on the ground of owner's occupation. Since a decree for eviction was passed, the tenant filed an appeal challenging the decree for eviction and the landlady also filed an appeal because her claim for bona fide requirement of the premises in question for her own occupation was rejected. Both these appeals were disposed of by a common judgment by the appellate authority.

2. Admittedly, the landlady was a resident of Gobichettipalayam, Coimbatore Dt. as will be clear from a notice given by her on the 15th March, 1982. She filed a petition on the 25th June, 1982, claiming that the rent for May, 5981 and for the months March, 1982 to May, 1982, remained unpaid. She also pleaded that she was residing in a rented premises at No. 39, Mandaveli Lane, Mylapore, Madras, paying a rent of Rs. 200 per month, that she has no other house of her own in the city of Madras, except the premises in question, that she required the portion occupied by the tenant for her own use and occupation and that the requirement was bona fide. The tenant in his reply claimed that the rent for May, 1981 was already sent by him to her residential address in June, 1981, but that the envelope containing the demand draft sent by registered post had come back with the endorsement that nobody was found at the address which was written correctly and which was the same address to which earlier rent had been sent. Admittedly, the rent had throughout been sent to the landlady by demand draft by registered post. The tenant's further case was that after the receipt of the notice from the lawyer demanding the sum of Rs. 1,000 being the rent for period June, 1981 to March, 1982 by the letter dated 24th March, 1982, the tenant had sent by demand draft to the advocate of the landlady a sum of Rs. 900 towards the rent for the months June, 1981 to February, 1982. By the accompanying letter, the tenant wanted to know to what address the future rent was to be sent. But since no communication was received from the landlady, the rent for March and April, 1982 fell in arrears.

3. The trial Judge took the view that the requirement of the landlady was not bona fide and rejeced the evidence of the husband of the landlady that the landlady was residing in rented premises at Madras. He took notice of the fact that, though the husband had deposed that he was residing at Madras from April, 1981 the, landlady, in the notice given to the tenant on 15th March, 1982, had given her Gobichettipalayam address. However, the trial Judge accepted the case of wilful default in payment of rent for the months of March and April, 1982. He took the view that the rent for the months of March and April, 1982, could have been sent by the tenant to the counsel for the landlady.

4. Both the landlady and the tenant filed two separate appeals against the order of the Rent Controller. Before the appellate authority the landlady produced six documents, which according to her, were necessary to prove that she was residing in rented premises. In the affidavit filed before the appellate authority, she stated that 'she was not able to produce the same during the trial of the case, since she was under the impression that she could prove her case even without it.' These documents were as follows:

(1) Zerox copy of Indane Consumer Registration slip issued in favour of the husband of the landlady at No. 46, Nachiappa Chetti St., Madras.

(2) Letter addressed to the landlady by one of the tenants, dated 17th March, 1982 where the landlady's address is given as 46, Nachiappa Chetti St. Mylapore, Madras.

(3) Receipt issued by one Lalitha Ammal for rental advance paid by the husband of the landlady in respect of house No. 39, Mandavelli Lane, Mandaveli-pakkam, Madras.

(4) Letter dated 24th June, 1982 sent by one Govindarajulu, to the landlady at No. 39, Mandavelli Lane.

(5) Zerox copy of ration card in which head of the family is shown as Manian, and change of address from 46, Nachiappa Chetti St., to No. 39, Mandaveili Lane, Mylapore, Madras.

(6) Letter dated 25th November, 1983 showing that one Kalpana, daughter of K. Mani residing at No. 46, Nachiappa Chetti St., Mylapore, Madras, was studying in a school from 24th April, 1981.

5. All these documents were accepted at their face value by the appellate authority and the appellate authority came to the conclusion that the landlady was not occupying a house of her own in Madras, and therefore, her requirement was bona fide and she was entitled to the order for eviction of the tenant on that ground.

6. With regard to the question of wilful default, the appellate authority held that it was for the tenant to find out the address of the landlady and, since he had failed to pay rent for nearly nine months, the finding of wilful default recorded by the Rent Controller could not be disturbed. This decree for eviction is now challenged by the tenant in these revision petitions.

7. With regard to the claim of the landlady that the premises were needed by her for her own occupation Mr. N.C. Raghavachari, learned Counsel appearing on behalf of the tenant, has contended that in the notice given by the landlady on 15th March, 1982, that is, just about three months prior to the filing of the rent control petition, no reference has been made to her requirement of the premises for her own use or for any member of her family, and it is pointed out that even in the notice the address of the landlady is given as '5.A, Bharathi Dasan St., Gobichettipalayam, Periyar Dt. Learned Counsel has pointed out that even in the application nothing has been stated as to when she shifted to Madras, and, beyond stating that she required the portion occupied by the tenant for her own use and occupation and that the requirement is bona fide, no further details, as to when she shifted her residence to Madras, have been given. With regard to arrears of rent, it is pointed out that the rent for the month of May, 1981 which was sent by demand draft remained unpaid, because the registered letter could not be delivered. The endorsement on the returned envelope which was opened before the Rent Controller was 'addressee left without instructions. Returned to sender'. The registered envelope having come back, according to learned Counsel, unless the correct address was known the rent could not be sent, and it is pointed out that, after the receipt of the notice dated 15th March, 1982 a cheque for Rs. 900 being the rent for the period June, 1981 to February, 1982 was immediately sent. Reference is made to the letter sent on 24th March, 1982 to the advocate for the landlady, in which the advocate for the tenant had requested the landlady's Advocate to inform him about the address of the landlady, so that a draft for Rs. 100 for the month of May, 1981 which had already been purchased, could also be sent. However, since no reply was received, the rent was not paid.

8. Learned Counsel appearing on behalf of the landlady has contended that it was enough if the husband of the landlady gave evidence to show that he had no house of his own in Madras, and that if such evidence was given the landlady was not required to prove anything more. It was argued that the burden was on the tenant to prove that the landlady had a house of her own in Madras. With regard to the finding on the question of wilful default, the argument was that the finding recorded by both the Rent Control authorities was not perverse and that it should not therefore be interfered with.

9. At the outset, it is necessary to consider the argument of the learned Counsel for the tenant with regard to the admission of additional evidence which has been allowed to be produced, by the appellate authority. Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Rent Control Act provides for a right of appeal. Sub-section (3) of Section 23 reads as follows:

The appellate authority shall call for the records of the case from the Rent Controller and after giving the parties an opportunity of being heard, and, if necessary, after making such further enquiry, as he thinks fit either personally or through the Controller, shall decide the appeal.

Sub-section (3) of Section 23 undoubtedly enables the appellate authority to make such further enquiry, as he thinks fit. This enquiry could be made by the appellate authority either personally or through the Controller. Rule 16 of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974 deals with the procedure for the disposal of appeals under Section 23. Sub-Rule (2) of Rule 16 reads as follows:

If the appellate authority decides to make further enquiry, he may take additional evidence or require such evidence to be taken by the Controller.

Section 23(3) of the Act read with Rule 16 of the Rules, therefore, clearly enables the appellate authority to take additional evidence, or he can direct evidence to be taken by the Controller. It must be pointed out that Rule 16(2), refers to the power of the appellate authority to take additional evidence. It does not create any right in a party to have additional evidence admitted as a matter of course. The power of permitting additional evidence to be produced at the stage of appeal must be exercised by the appellate authority judiciously, and before additional evidence is given, the appellate authority must be satisfied that such additional evidence is necessary for a proper disposal of the appeal. The provision for additional evidence as part of the further enquiry permitted to be made by the appellate authority does not imply that a party has a right to have additional evidence produced before the appellate authority without any valid justification. If any documents are to be produced, they could be permitted to be produced by way of additional evidence only if the appellate authority is satisfied that it is necessary to make a further enquiry and that there was good justification for not producing those documents before the Rent Controller. In the instant case, the only ground which the landlady gave for the non-production of those documents was that she thought that she would be able to prove her case without those documents. This can hardly be a ground for production of additional evidence. The fact that some documents were not filed before the Rent Controller is not by itself sufficient for the appellate authority to make a further enquiry if the parties had enough opportunity to produce all the evidence in support of their respective cases before the Rent Controller.

10. The appellate authority must realise that parties who go to trial before the Rent Controller are normally required to produce all the available evidence on which they rely before the Rent Controller himself. However, in view of the specific provision in Section 23(3) of the Act, when the appellate authority has been given a discretion to admit additional evidence, before accepting those documents which are produced as additional evidence, the appellate authority must scrutinise those documents and decide how far they are relevant for the determination of the issue before him. If any additional evidence by way of documents is produced at the appellate stage, unless those documents are duly proved, they cannot automatically be accepted as evidence. If additional evidence is allowed to be produced by one party, the other party is also entitled to an opportunity to rebut the additional evidence. Whenever additional evidence is given by one of the parties before the appellate authority, the appellate authority is duty bound to give an opportunity to the other party to produce such additional evidence as may be necessary to rebut the additional evidence. This could be done either before the appellate authority himself or before the Rent Controller who could be directed by the appellate authority to admit or record the necessary evidence.

11. If the documents which are produced as additional evidence are not public documents, the appellate authority must insist on the necessary evidence to prove those documents unless the documents are admitted by the other party.

12. The present case is an illustration of how mechanically, even without scrutinising the documents, the appellate authority has allowed the documents to be marked as evidence. The Indane Consumer registration slip issued by Reliance Agencies, dated 2nd January, 1982, by itself, proves nothing, except that a consumer by name K. Mani, whose address is given as No. 46, Nachiappa Chetti St., Madras had registered for supply of gas. The notice, dated 15th March, 1982, admittedly contains the Gobichettipalayam address of the landlady. This document is therefore of no assistance to prove that in January 1982, the landlady was residing at No. 46, Nachiappa Chetti St. Mylapore, Madras. The second document which is an electricity consumption card is in the name of A.Lalitha and is not in the name of the landlady. The third document is an ordinary scrap of paper dated 17th March, 1982, which purports to have been signed by one Bikkoji Rao, in which it has been stated that the landlady was then residing at No. 46, Nachiappa Chetti Street, Mylapore, Madras. It was clearly necessary to examine the said Bikkoji Rao, if the letter was to be used as evidence against the tenant. The fourth document is a printed intimation from the Corporation of Madras to Mani, No. 46, Nachiappa Chetti St., Mylapore;, Madras with reference to his letter dated 19th March, 1982, informing him that a search was made in respect of the birth certificate of somebody, whose name is not mentioned, who was born on 25th January, 1970. This letter was dated 19th March, 1982, and it is important to note that, four days prior to this, the advocate's notice on behalf of the landlady mentioned the Gobichettipalayam address of the landlady. The fifth document is a receipt issued by Lalitha Ammal, purporting to be a receipt, for rental advance in respect of house No. 39, Mandavelli Lane, Madavellipakkam, Madras, from the husband of the landlady. This document also could not have been accepted straightway unless it was properly proved. The next document is a letter from one Govindarajulu to the landlady. This is a typed letter on a foolscap paper with the address of the landlady, as No. 39, Mandavelli lane, Mylapore, scribbled on it. This is clearly a private document. The next document is a ration card which does not bear any date. The other document is a certificate, dated 25th November, 1983, showing that Kalpana, daughter of K. Mani residing at No. 46, Nachiappa Chetti St., Mylapore, Madras, was studying in Sri Vidya English Medium school during the year 1981-82 and was admitted on 28th April, 1981.

13. The tenant was entitled to cross-examine the authors of these documents with regard to the dates on which they were issued, and the circumstances under which they were issued. The appellate authority was therefore, clearly in error in acting upon these documents straightway and holding that the landlady was residing in premises No. 39, Mandavelli lane, which she had taken on rent. The appellate authority has completely lost sight of the fact that the averments in paragraph 5 of the petition of the landlady, made on 24th June, 1982 does not indicate that the husband of the landlady was originally living with his father in another house and that the husband had later on taken en rent an independent house. In the light of the notice dated 15th March, 1982, the landlady was bound to disclose as to when she had shifted to Madras, because the court is entitled to presume that as on 15th March, 1982 her permanent place of residence was Gobichettipalayam. She has not given any details in paragraph 5 as to when she came to Madras. It is not clear whether she had shifted to Madras or whether she is asking for the eviction of the tenant on the ground that she wants the premises in the occupation of the tenant for the members of her family, that is, for her husband. She has come to court with a specific case that she was living in Madras in rented premises, which is completely belied by the notice dated 15th March, 1982. The appellate authority was therefore clearly in error in acting upon the additional evidence and accepting the case that the landlady was residing in rented premises in Madras.

14. So far as the question of wilful default is concerned, I fail to see how any decree on the ground of wilful default could be passed against the tenant. It is not in dispute that the rent sent by demand draft for May, 1981 came back undelivered, with the endorsement that the landlady had left the place. Thereafter there would be good justification for the tenant not to send the rent until he was able to find out the address of the landlady. The non-payment of rent for the period June, 1981 to March, 1982, was clearly the result of the demand draft for the earlier period having been returned undelivered. Immediately on receipt of the notice the tenant had paid the entire arrears of rent. So far as the rent for March, 1982 was concerned, the tenant has clearly stated in his reply to the notice by the landlady that he should be informed of the correct address so that the rent could be sent to the landlady. It is true that the rent for the subsequent period could also have been sent to the landlady's advocate. But merely because this course was not adopted, it is not possible to hold that the tenant had become a wilful defaulter, because apparently there was good justification for non-payment of rent for the months of March and April, 1982, which was paid on 25th June, 1982. In my view, on the peculiar facts of the case, where the tenant found that the landlady was not traceable and for the first time hears of the landlady after the receipt of the notice dated 15th March, 1982, the tenant cannot be called a wilful defaulter. Accordingly the finding of the appellate authority that the tenant was a wilful defaulter, is liable to be set aside.

15. In the view which I have taken, that the landlady has not pleaded a case in her petition as to when she had shifted to Madras, which had to be only after 15th March, 1982, because in the notice of that date her address had clearly been given as Gobichettipalayam, it is not necessary to direct either the appellate authority or the Rent Controller to give an opportunity to the tenant to adduce additional evidence in rebuttal of the additional evidence produced by the landlady.

16. In the view which I have taken, the civil revision petitions are allowed, and the findings recorded by the appellate authority and the Rent Controller, that the tenant is liable to be evicted, are set aside, and the petition of the landlady will stand rejected. The landlady will pay the costs of these revision petitions. Counsel's fee Rs. 250 one set.


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