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D. Rukmani Ammal and ors. Vs. V.K. Izudden - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 3247 of 1981
Judge
Reported inAIR1983Mad303; (1983)1MLJ189
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 14(1) and 25
AppellantD. Rukmani Ammal and ors.
RespondentV.K. Izudden
Appellant AdvocateV. Avudainayagam, Adv.
Respondent AdvocateT. Viswanatha Rao, Adv.
Cases ReferredSri Rajalakshmi Dyeing Works v. Rangaswami
Excerpt:
.....tenant by said procedure of filling single petition for his eviction in respect of two different door numbers - these door numbers have been subject matter of single lease - structurally two door numbers situated in close proximity and other physical features establish such nexus that warrant to treat them as single unit let out as such to tenant - tenant in common enjoyment of unit as whole though bearing two different door numbers - held, tenant not put to prejudice by process of single petition for eviction under section 14 (1) (b). - - jiwanlal, air1963sc499 ,while stating as to how the controller has to be satisfied about the genuineness of the claim of the landlord, the supreme court observed that to reach this conclusion, the controller must be satisfied about the reality..........the case of the landlords on two grounds, namely, (1) the premises demised consisted of two door numbers and single petition for eviction would not lie and (2) the landlords have not proved their means to undertake the work of demolition and reconstruction. the other points have been found in favour of the landlords by the appellate authority; the appellate authority found that the landlords are armed with a sanctioned plan from the corporation of madras for the work of demolition and reconstruction and the existing condition of the premises bear out the bona fide requirement of the landlords for demolition and reconstruction.2. mr. v. avudainayagam, learned counsel appearing for the landlords, would submit that the appellate authority on the tow points found against the.....
Judgment:

1. The landlords within the meaning of the Tamil Nadu Buildings (Lease and Rent Control) Act (Act 18 of 1960) hereinafter referred to as 'the Act' are the petitioners in this revision. The respondent herein is the tenant within the meaning of the Act. The landlords sought the eviction of the tenant under Section 14(1)(b) of the Act, on the ground that they bona fide required the premises demised for demolition and reconstruction. The tenant contested the petition of the landlords and yet, the Controller countenanced the case of the landlords and ordered eviction of the tenant. The tenant appealed and the appellate authority discountenanced the case of the landlords on two grounds, namely, (1) the premises demised consisted of two door numbers and single petition for eviction would not lie and (2) the landlords have not proved their means to undertake the work of demolition and reconstruction. The other points have been found in favour of the landlords by the appellate authority; the appellate authority found that the landlords are armed with a sanctioned plan from the corporation of Madras for the work of demolition and reconstruction and the existing condition of the premises bear out the bona fide requirement of the landlords for demolition and reconstruction.

2. Mr. V. Avudainayagam, learned counsel appearing for the landlords, would submit that the appellate authority on the tow points found against the landlords, has not applied the correct principles governing them and on this ground, the learned counsel would solicit interference in revision by this court. There is no doubt that as on the relevant date, the premises demised consisted consist of two door numbers; one is door No. 77 (old No. 212) Triplicane High Road, Madras 600 00 5, and the other is door No. 7 (old No. 1/48) first floor, Kanabagh Street first lane, Triplicane, Madras 600 005. Originally door No.77 Triplicane High Road alone was the subject mater of demise and subsequently, the tenant has been inducted into possession in the upstairs of door No. 7 Khanabagh Street first lane. There is a deed of lease dated 7-9-1960. This deed covered both the door numbers. By this deed, the lease given was a single lease. Both the door numbers were treated as a single unit with regard to the terms governing the lease. Only one rent per month was stipulated. The landlords relied on Ex. P-11 the report of a retired Assistant Engineer in the Corporation of Madras. It shows that the door No. 7 Khanabagh Street first lane, is directly abutting door No. 77 Triplicane HIgh Road, in the rear of the latter, and they are abutting back to back. Ex. R-10 is the report of a Civil Engineer relied on by the tenant and this also shows that the access to the first floor in door No.7 Khanabagh Street, first lane, which is also in the occupation of the tenant under the single lease, is only from door No. 77 Triplicane High Road, by a pucca staircase. This report Ex.R10 further discloses that there is no entrance from door No. 77, Triplicane High Road which is in the occupation of the tenant, to the ground of door No.7 Khanabagh Street first lane, and equally so, there is no entrance from the first floor of door No.7 Khanabagh street first lane to the ground floor in the same door number. These details amply demonstrate that door No. 77 Triplicane High Road and the first floor in door No. 7 Khanabagh Street first lane, are practically forming a single unit though they bear different door numbers.

3. The appellate authority relied on a judgment of this court in T. N. Unnamalai Achi v. Saminatha Pathar (1980) 93 MLW 404 to hold that a single petition for eviction is not maintainable in the instant case. In my view, the facts of the present case do not justify the application of the ratio pronounced by me in that case. In T. N. Unnamalai Achi v. Saminatha Pathar (1980) 93 MLW 404, the building bore three door numbers; those three door numbers were let out at different points of time; the three door numbers were not found to be covered by a single tenancy arrangement; the three door numbers were not found to be in one and the same premises and the three door numbers were not leased out to serve same purposes residential or non-residential; and on the other hand two served purposes residential; the third one served purposes non- residential and further it was found that the clubbing of the three door numbers together for the purpose of obtaining reliefs under the provisions of Section 10(3)(a)(i) of the Act, will cause prejudice to the tenant.

4. Senguttuvelan J. in Kandaswami v. Hajee K. S. Mohd. Mohideen Rawther : (1982)1MLJ179 dealt with a case where the concerned premises were two separate portions of the building with another portion in between; a consolidated rent for both the premises was fixed and there was no separate tenancy agreement in respect of each of the premises and both the landlord and the tenant had proceeded all along on the basis of a single tenancy, and the learned Judge, after adverting to the case law on the subject, held that a single petition for eviction in that case under Sections 10(2)(ii)(b) and 10(2)(iii) of the Act in respect of the entire premises can be maintained. Reference may also be made to the decision of the Supreme Court in Gopala Krishna Chetti v. Ganeshan, : [1976]1SCR273 , where the Supreme Court repelled the contention that a single petition with regard to two different tenancies although in the same premises, one for residential purposes and the other for non-residential purposes is not maintainable, as without substance since the tenancy was one.

5. Mr. T. Viswanatha Rao, learned counsel for the tenant, would urge that if two tenancies are in the same premises, there may be a warrant for maintaining a single petition for eviction under Section 14(1)(b) of the Act and he would state that in the instant case, there are two different door numbers and hence, on this ground, the learned counsel for the tenant wants to sustain the order passed by the appellate authority.

6. Section 2(2) of the Act defined 'building' as any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes....Neither in Section 2(2) nor in Sec. 14(1)(b) of the Act, there is anything expressly or impliedly repugnant to construing the expression 'building' occurring in Section 14(1)(b) to signify 'building' in plural, in appropriate cases where such building, in plural forms or could form a separate unit as a whole and had been leased out as such. Of course, the definition of 'building' takes in part of a building. The criterion to be applied under Section 14(1)(b) in appropriate cases is that if a particular unit, be it part of a particular building or more than one building, is let or could be let separately under a single lease, such a unit will come within the ambit of Section 14(1)(b), and the structural proximity and the other physical features are also relevant factors to be taken note of and considered in such a case.

7. Ananthanarayanan, C. J. in Umsalma Bibi v. Lakkia Gowder, 1967 1 MLJ 277, dealt with a case under Sec. 14(1)(b) of the Act, where there were distinct and several door numbers or tenants in a single structure and obviously covered by different and separate tenancies and in occupation of different tenants, and in that context, the learned Chief Justice, taking note of the definition of 'building' under the Act, observed that the landlord must take a separate application in each such instance though all these 'buildings' may be within one structure. Yet, the learned Chief Justice, obviously keeping in mind the cardinal and salutary principle that if no prejudice has been or is being caused to the tenant even in such a contingency, courts shall not throw out such proceedings, declined to interfere in revision.

8. In all such cases, the real question is whether there has been any prejudice caused to the tenant or tenants by the said procedure of filing a single petition. Ananthanarayanan, C. J. applied the same principle to a case of a single petition under S. 6 of the Act against different tenants in Govindaswami Naicker v. Kerwar, (1969) 82 MLW 137, I have also kept in mind this principle while deciding the case in T. N. Unnamalai Achi v. Saminatha Pathar, (1980) 93 MLW 404.

9. In the instant case, though there are two different door numbers, they have been the subject matter of a single lease and that too to a single tenant; and structurally the two door numbers are situated in such a proximity and other physical features establish such a nexus that there is a warrant to treat them as a single unit let out as such to the tenant. The tenant is in common enjoyment of the unit as a whole though bearing two different door numbers. By no stretch of imagination it could be stated that the tenant was put to prejudice by the process of a single petition for eviction under S. 14(1)(b) of the Act adopted by the landlords.

10. Mr. T. Viswanatha Rao would point out yet another feature to state that a single petition could not be maintained and that is on the date of the petition before the Controller, the two door numbers had come to be owned by different persons amongst the landlords by virtue of a partition arrangement inter se the landlords. It is not pleaded that by virtue of this division amongst the sharers, namely , the landlords, there is a split up in the tenancy. The division is an arrangement inter se the landlords and it has not brought about a disruption in the tenancy and the unit of the tenancy as a single one taking in both the door numbers continued and continues. Admittedly, the tenant has not attorned to different landlords after any such division amongst them. Hence this objection cannot be sustained to overthrow the petition for eviction put forth by the landlords.

11. The second ground on which the appellate authority discountenanced the landlords' petition is that they have not proved their means to undertake the work of demolition and reconstruction. S. 14(1)(b) of the Act by itself does not lay down in specific terms that the landlord must demonstrate before the Controller that he has got the means to carry out the work of demolition and reconstruction. This element has been brought in under the caption 'bonafides' which is an essential feature to be considered for the purpose of sustaining the application of the landlord under S. 14(1)(b) of the Act .

12. In Netaram v. Jiwanlal, : AIR1963SC499 , while stating as to how the Controller has to be satisfied about the genuineness of the claim of the landlord, the Supreme Court observed that to reach this conclusion, the Controller must be satisfied about the reality of the claim made by the landlord and this can only be established by looking at all the surrounding circumstances, including the means of the landlord.

13. In Metalware Co. v. Bansilal, : [1979]3SCR1107 , the Supreme Court, while dealing with the question as to how far the existing condition of the building far from being totally irrelevant, is a vital factor, referred to the observations in Netaram's case, : AIR1963SC499 and indicated that even if the landlord has established that he had means to construct the houses, the existing state of the building is a relevant factor.

14. We can take it as settled that the means of the landlord to carry out the work of demolition and reconstruction is a relevant factor to be taken note of and considered while testing his bona fides. But his does not necessarily mean that the landlord should jingle the coins before the Controller to establish this factor. As observed by Ramaprasada Rao, C. J. in A. M. Batcha v. TMPC, Ramachandran, C. R. P.-1733 of 1975, order dated 19-1-1979, concisely reported in 1979 TLNJ 73 'the question has to be looked into from a more liberal angle. If the petitioners have proved that they are capable of raising funds for the purpose of such demolition and reconstruction, as was done before the Rent Controller and as was accepted by him, this would suffice for the purpose'. The appellate authority in the instant case has not kept in mind the above principle and on the other hand, it has chosen to take a technical view of the matter. P. W. 2 is the second petition., He is a draughtsman in the Public Works Department and he has deposed that he can raise funds by obtaining loan form the Government. The appellate authority eschews his evidence by stating that that he has not already applied for any such Government loan after he is armed with an order of eviction is subject to the vicissitudes of a legal process. P. W. 3 is the 4th petitioner. Her evidence has not at all been adverted to by the appellate authority. Her evidence is that she is possessed of jewels of considerable value.

15. P. W. 4 is the husband of the 4th petitioner. He is employed in the Life Insurance Corporation of India. He has deposed that he can get the loan for constructing the building in the property. The appellate authority points out that P. W. 4 cannot obtain a loan for putting up a construction in the property belonging to his wife. No such impediment was factually demonstrated before the appellate authority and I do not know how it conceive such an idea. It is only to demonstrate that the Life Insurance Corporation of India is amendable to grant a loan to P. W. 4 for constructing a residential house on the property belonging to his wife, that the landlords have taken out C. M. P. 10849 of 1981 in this revision, for receiving the certificates given by the Life Insurance Corporation of India, dated 21-9-1981, stating that P. W. 4 is eligible for such loan. It is not necessary to entertain this petition at this revisional stage because I am not able to appreciate and accept the theory put forth by the appellate authority that no such loan is feasible for P. W. 4 in the absence of any such factor brought to its notice. Mr. V. Avudainayagam, learned counsel for the landlords, brings to my notice the fact that in paragraph 4 of the petition for eviction the landlords have specifically averred that they have got ample means to meet the cost of the proposed work and significantly in the counter filed by the tenant, this has not been specifically controverted at all. This factor also has been omitted to be taken note of by the appellate authority and if taken note of, the appellate authority would not have applied the onerous test to this question and cast an undue burden of proof on the landlords. In my view, the consideration of this question by the appellate authority is tainted with an untenable and stringent approach to the same and obviously, this has vitiated its conclusion over it.

16. As a last attempt, Mr. T. Viswanatha Rao, learned counsel for the tenant, would submit that this court sitting in revision under S. 25 of the Act shall not re-assess the evidence and the factual materials, and for this purpose he would rely on Sri Rajalakshmi Dyeing Works v. Rangaswami, : AIR1980SC1253 . The observations therein are to the effect that a concurrent finding, based on evidence, that the landlord did not bona fide require the premises for his own use ad occupation is not a finding which can be touched by the High Court exercising jurisdiction under S. 25 of the Act. First of all, it is not a concurrent finding of facts by the two forums below. Secondly, it is not a case of reassessing the evidencing revisional jurisdiction. Here we find that there is a total transgression of the governing principles by the appellate authority when it considered the questions. When there is a misconstruction of the principles to be applied or when decisions have been rendered in ignorance of the said principles, certainly the matter would come within the ambit of the powers of this court, to correct and annul such improper, irregular and illegal orders. I have taken such view in Pappu Ammal, by agent Pal Nadar v. M/s. Lab Chemicals, : AIR1978Mad272 .

17. For all the above reasons, I am obliged to interfere in revision and accordingly this revision is allowed, the order of the appellate authority is set aside and the order passed by the Controller is restored. There will be no order as to costs. At the specific plea and request of the learned counsel for the tenant, the tenant will have three months from this date to vacate.

18. Revision allowed.


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