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Amithakumar Amichand Vs. Jawanthraj and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 1369 of 1981
Judge
Reported inAIR1983Mad324
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 10 (3)
AppellantAmithakumar Amichand
RespondentJawanthraj and ors.
Appellant AdvocateAdvocate General for S. Pitchai, P. Haridas, Bharat Kumar and K. Shah, Advs.
Respondent AdvocateR. Kesava Iyengar for K. Ramamurthi, K. P. Gopalakrishnan and N. S. Nandakumar, Advs.
Cases ReferredEhasan Bivi v. Nagalakshmi Ammal
Excerpt:
.....3) have not established that they are carrying on independent business, for the expansion of which business additional business additional accommodation is required let us assume that a joint business was carried on along with the father. in such a case, the moment a proposal is made to start an independent business dismembering for the joint business, it ceases to be an additional requirement, because the requirement is new. whether some other sub-section of section 10 of the act can be invoked or not certainly sub-section (3)(c) cannot be invoked. because it postulates only additional accommodation. it is to get over this difficulty of not carrying on an independent business, paragraphs 8 and 9 of the eviction petition state propose to set up.;the need of the son-n-law is not..........besides the second and third respondents are now proposing to set up their independent and separate business and carry on their business independently and thus the respondents bona fide require the first floor in the occupation of the revision petitioner by way of additional accommodation for both the purposes, namely, residential and non-residential. hence, the revision petitioner is liable to be evicted.3. a counter statement was filed by the revision petitioner stating that the petition for eviction, as framed, is not maintainable in law, since for both the purposes namely residential and non-residential, a single petition cannot be filed. the present petition has been filed as a counter-blast to hrc no. 3133 of 1977, which was one filed by the revision petitioner for.....
Judgment:
1. The tenant is the revision petitioner and the revision arises out of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960, hereinafter referred to as the Act.

2. The respondents (landlords) filed H. R. C. No. 908 of 1978 seeking eviction of the revision petitioner from the first floor of the building bearing door No. 101 Narayana Mudali Street, Madras 1. The monthly rent is Rs. 450. The premises were let out both for residential and non-residential purposes. The landlords are in occupation of the ground floor which is not sufficient for their purposes. They are carrying on business in the front portion of the ground floor and residing in the remaining portions of the ground floor. Each of the three respondents, who have come to succeed to this property on the death of Raji Bai, has a separate family in the ground-floor. The daughter and son-in-law of the first respondent have come down to Madras and the son-in-law desires to set up medical practice and also open a clinic in the premises in occupation of the revision petitioner. Besides the second and third respondents are now proposing to set up their independent and separate business and carry on their business independently and thus the respondents bona fide require the first floor in the occupation of the revision petitioner by way of additional accommodation for both the purposes, namely, residential and non-residential. Hence, the revision petitioner is liable to be evicted.

3. A counter statement was filed by the revision petitioner stating that the petition for eviction, as framed, is not maintainable in law, since for both the purposes namely residential and non-residential, a single petition cannot be filed. The present petition has been filed as a counter-blast to HRC No. 3133 of 1977, which was one filed by the revision petitioner for restoration of amenities when the electricity supply was cut off. The respondents cannot claim additional accommodation for setting up of a clinic of the son-in-law of the first respondent. The portion in the occupation of the revision petitioner is not at all suitable for setting up a clinic. The hardship that is likely to be caused to the revision petitioner will outweigh the advantage that would ensue in favour of the respondent. The bona fide requirements of the respondents is denied. There are a number of buildings owned by the respondents in the city of Madras and hence the requirement cannot be considered to be bona fide. For a proposal business there can never be any additional accommodation.

4. The Rent Controller, on a consideration of the entire matter, came to the conclusion that the requirement of the landlords was not bonafide, and, therefore, he dismissed the petition for eviction. Thereupon H. R. A. 128 of 1980 was filed before the Appellate Authority, who reversed the finding of the Rent Controller and ordered eviction. Hence, the revision petition.

5. The learned Advocate-General appearing for the revision petitioner argues as follows:-

The lower Appellate Authority has failed to consider that the motive for the petition for eviction was the earlier HRC No. 3133 of 1977, where under the Rent Controller had directed the restoration of electricity supply. That order was passed on 21-11-1977, while the notice under Ex. P-1 terminating the tenancy was issued on 5-12-1977. As regards the bona fide need, Section 10(3)(c) cannot be availed of for a "proposed business". If really additional accommodation is required, what has to be established is that the present volume of business is such as could require more accommodation by way of addition. This has not been established at all. All that is stated, both in the petition for eviction and in evidence, is that the landlords want 'to start a separate business'. That is not what is contemplated under Section 10(3)(c). Nor again, is there any evidence to show that the landlords (respondents 2 and 3) are carrying on any business. It has been laid down inNilgiri Dairy Farm v. Manoharan, 1978-1 Mad LJ 357, that the benefit of this section can be invoked only by a landlord carrying on business and not by one who is wanting to start a separate business. Then again the need of the son-in-law cannot be a ground for eviction under this sub-section since it postulates the land-lords' own need and not of a member of his family, as has been held in M. Ramalingam v. Kothandaraman, 1980-2 Mad LJ 283. Lastly, it is submitted that the relative hardship has not been properly appreciated by the Appellate Authority who has ordered eviction as a matter of course. This factor being an important consideration, it was essential on the part of the Appellate Authority to have considered it.

6. Mr. R. Kesava Iyengar, learned counsel for the

respondents-landlords, in meeting the arguments of the learned Advocate-General and supporting the order of eviction, submits as under: Certainly if the law enables the landlords to get an order of eviction on any one of the grounds contemplated under the Act, the fact that there was an earlier petition between the parties which might have gone adverse to the landlords, is not a ground to hold that the present petition for eviction is motivated. It is, no doubt, true the petition for eviction uses words that the second and third landlords are now proposing to set up their independent and separate business and carry on business independently of their own instead of running business along with their father.' But that does not mean that they are going to start a new business altogether. It is not the mere language which has to be looked into, but the substance thereof. The word "proposed" may be bad grammar. But Courts cannot apply the rule mechanically basing on grammar and disallow the relief to the party. In support of this submission reliance is placed onDeputy Custodian Evacuee Property New Delhi v. Official Receiver of the Estate of Daulat Ram Surana Delhi, , and the passage occurring at page 957. For the same proposition that the substance has to be looked into for granting real relief to the party, Sagarmull Nathany v. Galstaun, AIR 1930 PC 205 and Bhagawati Prasad v. Shri Chandramaul, are referred to. A perusal of the Income-tax assessments by way of Exhibits P-3 and P-4 and the promissory note Ex. P-5, would show that independent business is being carried on and this should be enough to uphold the claim of the landlords for eviction. Under these circumstances, one cannot go by the mere language employed. This is practically a case of a person being a co-owner seeking additional accommodation. After the death of Raji Bai her daughter became a co-owner and she wants the premises for her husband's medical practice. It is well-settled that one co-owner can ask on behalf of the other co-owners. The father being a co-owner can ask on behalf of the daughter, as laid down in Smt. Kantagoel v. B. P. Pathak, and Ehasan Bivi v.

Nagalakshmi Ammal, (1981) 1 Mad LJ 240.

7. As regards the inconvenience on account of eviction, it is a question of balancing the rights between the parties. When once the need of the landlords is established, nothing further is required than to order eviction, unless the tenant proves that the hardship to him will be far greater. There is no such proof in the instant case.

8. Before I go into the question whether the present petition for eviction has been motivated or not, let me examine whether the need of the landlords for additional accommodation has been preferred under Section 10(3)(c) of the Act. It is worthwhile to extract that section-

"A landlord who is occupying only a part of a 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 portion 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 he is carrying on as the case may be."

9. A reading of the provision extracted above makes it clear that the benefit of the section can be invoked only for additional accommodation. 'Additional Accommodation' in my considered view, contemplates something in existence to which there must be an addition. The reason why I mention this even at the outset is because of the averments contained in the petition for eviction. In paras 8 and 9 the need of the landlords is stated as follows-

"8. Further the second and third petitioners are now proposing to set up their independent and separate business at the building and carry on business independently of their own instead of running business along with their father since they have become independent and have separate families of their own. The son-in-law of the first petitioner desires to set up a clinic thereat.

9. The petitioners state that the second and third of them require accommodation for their separate business which they propose to set up separately at the first floor which is in occupation of the respondents, while the first petitioner's son-in-law desires to set up his clinic thereat. Further they desire that the third of them should have separate place for his residence along with his family also for the residence of son-in-law of the first

petitioner........."

10. This has to be read with the evidence P. W. 2 who is the third respondent (landlord) in his examination in chief states as follows-

"I am living separately. I have got separate business. I am paying income-tax. There are the Income-tax orders Exs. P-3 and P-4. I am a financier. Pronote Ex. P-5."

Again in cross-examination it is stated by him-

"On 13-3-1978 I signed the petition. I have stated that I want to do independent business. It is correct. I have not stated in the petition that I was doing business separately and residing separately. I have no separate ration card. P.W. 2 has no separate ration card. I have no separate gas connection. I cannot give the date when I applied for gas connection. My father has got gas cylinder. My father has separate ration card. I did not know the family members mentioned in my father's ration card."

The argument of Mr. Kesava Iyengar is that the word 'proposed' is bad grammar and, therefore, it is the substance that has to be looked into. Whether this is bad grammar or not, could be decided after finding out whether the landlords are doing business for which the premises is required by way of addition. A careful perusal of Exs. P-3 and P-4 does not disclose any income from business, because both these orders of assessment, which are in the individual name of P.W. 2, merely refer to the salaries and the interest. This has to be read in conjunction with the cross-examination extracted above wherein, as seen already, P. W. 2 categorically admits that he had not stated in the petition that he was doing business separately and residing separately. The only other documentary evidence, to which reference has to be made, is Ex. P-5. The genuineness of this document was doubted by the Rent Controller, while the Appellate Authority held that its genuineness was not questioned. We are not on that. The petition for eviction was filed on 13th March, 1978, while Ex. P-5 is dated 23rd May, 1979. From this it is impossible to conclude that any independent business is being carried on by P.W.2. Having regard to the oral and documentary evidence in the case, the only conclusion that is possible is that the landlords 2 and 3 (respondents 2 and 3 herein) have not established that they are carrying on independent business, for the expansion of which business additional accommodation is required.

11. Let us assume that a joint business was carried on along with the father, P. W. 1. In such a case, the moment a proposal is made to start an independent business dismembering from the joint business, it ceases to be an additional requirement, because the requirement is new. Whether some other sub-section of Section 10 of the Act can be invoked or not, certainly sub-sec (3) (c) cannot be invoked. Because, as noted already, it postulates only 'additional accommodation.' It is to get over this difficulty of not carrying on an independent business, paras 8 and 9 of the eviction petition state 'propose' to set up. It is true that one cannot go by the grammatical meaning in affording a relief, as stated in the ruling reported in Deputy Custodian, Evacuee Property, New Delhi v. Official Receiver of the estate of Daulat Ram Surana, Delhi, . The Supreme Court held at p.229 (of SCR) : (at pp. 956-957 of AIR)-

"The risk posed by transferee which intending evacuees were naturally inclined to make to save their fortunes was so grave at the relevant time that the legislature has taken the precaution of making appropriate provisions to save the economy of the country; and so, it seems to us that the consequence which inevitably flows from the adoption of construction for which Mr. Pathak contends is so patently inconsistent with the clear and unambiguous object of the Act that it would not be reasonable to accept that construction. In our opinion, the construction of Section 7(1) presents a problem which can be resolved not merely by the adoption of the mechanical rule of construction based on grammar, but by a liberal construction which takes into account the bearing and purport of the relevant words used in Section 7(1), considered in the light of the other relevant provisions of the Act and the principal object of the Act."

In Saganmull Nathany v. John Caraptet Galstadh, AIR 1930 PC 205 in dealing with the interpretation of the pleadings, their Lordships of the Privy council held at p.208-

"Their Lordships, so far as the first suit is concerned, see no reason to differ from the main findings of fact of the trial Judge, and are of opinion that the High Court founded themselves upon too narrow a ground in dismissing the suit for variance. Their Lordships are satisfied that, notwithstanding the form of the plaint the suit was fought by the parties deliberately upon issues substantially as framed by the trial Judge and ought upon that footing to be determined."

In this connection, I may usefully refer to J. G. Posse's Latin Maxims, wherein contains the golden rule which obliges the Court to consider the facts and substance of the matter and not the niceties of form :

"Qui haeret in litera, haeret in cortice (He who considers merely the letter of an instrument goes but skin-deep into its meaning)-

The law of England respects the effect and substance of the matter and not every nicety of form or circumstance. The reason and spirit of cases make law, and not the letter of particular precedents. Hence, it is as we have already seen, a general rule connected with the interpretation of deeds and written instruments, that where the intention is clear, too minute a stress should not be laid on the strict and precise signification of words......

In accordance with this principle, it is a further rule that mala grammatica non vitiat chartem - the grammatical construction is not always, in judgment of law, to be followed, and neither false English not bad Latin makes a deed void when its meaning is apparent. Thus, the word 'and' has as already intimated, in certain cases, been read 'or', and vice-versa. When this change was rendered necessary by the context."

These wholesome principles have no application to the facts of the present case in view of what I have found above. Once, therefore, the position is arrived at that the landlords are not carrying on business, I have necessarily to uphold the argument of the learned Advocate General, who places his reliance justifiably on Messrs. Nilgiri Dairy Farm v. Manoharan, 1978-1 Mad LJ 357. The Learned Judge held in interpreting the section-

"It cannot be said that the words 'carrying on business' occurring in S. 10(3)(c)(iii) of the Tamil Nadu Buildings (Lease and Rent Control)Act should be construed in the same manner as similar words in Section 10(3)(a) in the Act, for two reasons. The first is that S. 10(3)(c) deals with additional accommodation which implies that accommodation which is already in the occupation of the landlord for the purpose of the business which he is carrying on is not sufficient, necessitating additional accommodation by evicting tenants from other portions of the same 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 Section 10(3)(a) of the Act while it does arise for consideration in cases governed by Section 10(3)(c) of the Act. The proviso to that section provides that in the case of an application under Clause (c), the Rent 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."

The need of the son-in-law is not contemplated under Section 10(3)(c) of the Act. It has been so laid down in M. Ramalingam v. Kothandaraman, (1980 ) 2 Mad LJ 283. Therefore the Learned Advocate General is right in his submission in this regard as well.

11-A. I am unable to accept the argument that this is a case of a father as owner seeking additional accommodation on behalf of a daughter. No doubt, the ruling in Smt. Kanta Goel v. B. P. Pathak, , clearly contemplates a co owner seeking eviction on behalf of the other co-owners. Likewise, the decision in Ehasan Bivi v. Nagalakshmi Ammal, (1981) 2 Mad LJ 240. But no foundation was laid for such a case at any point of time in the instant maker (case?). There is nothing on record to show that on the death of Raji Bai all these persons succeeded to her estate excepting the statement of Mr. Kesava Iyengar from the Bar that on 8-4-1976 Raji Bai died and the respondents and the daughter succeeded . Certainly I cannot accept such a statement from the Bar. Even otherwise, no evidence worth the name has been let in to show that the premises in the occupation of the respondent herein are required as additional accommodation to set up medical practice. It is well settled in law that where, if carrying on profession as a doctor, the need of the profession required additional accommodation, then alone S. 10(3)(c) can be invoked and not when, as stated in para 8 of the petition for eviction, the first petitioner's son-in-law desires to set up his clinic thereat.

12. As regards the residence the evidence of P. W. 2 has already been alluded to. When he is living separately, there is no question of additional accommodation for residence. Even here the evidence is lacking as to how the necessity for additional accommodation for residence has arisen.

13. I see great force in the submission of the learned Advocate-General that the present petition for eviction is only a counter-blast to the earlier rent control proceedings in HRC No. 3133 of 1977. An interim order was passed on 21-11-1977 in the said HRC No. 3133 of 1977, directing restoration of the supply of electricity. It is significant to note that the notice Ex. P-1 comes to be issued on 5-12-1977, within a fortnight of the order directing restoration of the electricity supply. This is the real motive for the present revision petition.

14. I view of what I have found above, I think there is no necessity to decide the hardship that will ensue to the revision-petitioner (tenant) in comparison to the advantage of the landlords (respondents).

15. For all the above reasons, the civil revision petition will stand allowed. However, there will be no order as to costs.

16. Revision allowed.


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