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V.R. Shah and anr. Vs. N. Visalakshi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1983)2MLJ186
AppellantV.R. Shah and anr.
RespondentN. Visalakshi
Cases ReferredMuttulal v. Radhe Lal
Excerpt:
- - since she has failed to do so in view of the rulings reported in sivaprakasam and ors. 10(3)(e) the controller shall, if he is satisfied that the claim of the landlord is bona fide make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the controller and if the controller is not so satisfied he shall make an order rejecting the application: provided that, in the case of an application under clause (c), the 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: looked at from that point of view the requirements are fully satisfied, namely:.....aggrieved by the order of the appellate authority reversing the order of the rent controller. the appellate authority had directed the eviction on the ground that the landlady's married daughter and son are required to be provided with separate residence as contemplated under section 10(3)(a)(i) of the tamil nadu buildings (lease and rent control) act while the rent controller was of the view that the evidence of p.w. 1 could not be accepted. how the matter was approached by the appellate authority was admittedly the married daughter and the son of the landlady were living along with the landlady and the family itself consisting of 14 members and therefore this is a case in which the bona fides had been fully made out. in seeking to revise this order what is contended by mr. udairaj.....
Judgment:

S. Mohan, J.

1. These two revisions are filed by the tenants who are aggrieved by the order of the appellate authority reversing the order of the Rent Controller. The Appellate Authority had directed the eviction on the ground that the landlady's married daughter and son are required to be provided with separate residence as contemplated under Section 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act while the Rent Controller was of the view that the evidence of P.W. 1 could not be accepted. How the matter was approached by the appellate authority was admittedly the married daughter and the son of the landlady were living along with the landlady and the family itself consisting of 14 members and therefore this is a case in which the bona fides had been fully made out. In seeking to revise this order what is contended by Mr. Udairaj Gulecha, learned Counsel for the petitioner, is as follows: It is the duty of the landlady to enter into the box and depose to the bona fide requirement of the married daughter or the son as the case may be. Since she has failed to do so in view of the rulings reported in Sivaprakasam and Ors. v. K.M. Sheriff (1974) T.L.N.J. 195 and in Nanalal Goverdhandas & Company v. Smt. Samarathai Lilachand Shah : AIR1981Bom1 , which was followed in Chinta Narayanamma v. Kholli Sahu and Ors. : AIR1982Ori183 , the petitions ought to have been dismissed. Further it is argued that the rent control petitions themselves are vague because it is not stated anywhere in those petitions that the married daughter or the son are living with the landlady (mother) and the appellate authority had made a wrong statement in this regard. Lastly it is contended that the approach of the appellate authority itself is wrong. These are points raised before me. These points are countered by the learned Counsel for the respondent stating that it is not necessary that the landlady herself has to enter into the witness box and depose evidence, as through P.W. 1 it was elicited that Kanchanamala and Ramasundaram for whose requirement the rent control petitions were filed since they are living with the landlady the mother (Visalakshi). The law does not require that the landlady herself must enter into box and depose evidence. The case reported in Sivaprakasam and Ors. v. S. M. Sheriff (1974) T.L.N.J.195, was a case wherein there was no evidence by the concerned person nor was there any other evidence Therefore it cannot be held that the landlady who filed the rent control petitions must herself enter into the box. If all the requirements of Section 10(3)(a)(i) of the Act are tested in the light of Section 10(3)(e) that will be enough to grant the relief. The contention that the approach by the appellate authority is wrong is untenable.

2. A subsidiary argument was raised at a belated stage that one of the portions which had fallen vacant was occupied by Kanchanamala. Therefore, the subsequent event can be taken note of as per the ruling of the Supreme Court reported in Hasmant Rai and Anr. v. Raghunath : [1981]3SCR605 . But this is countered by filing an affidavit stating that the said portion was vacated only for Savithri Balakrishnan and she has occupied the same and therefore Kanchanamala is residing with the landlady. Hence no subsequent event will be taken note of. Accepting the counter-affidavit I see nothing warrants taking note of the subsequent event. Therefore, I proceed to deal with the merits of the case. In paragraph 3 of the petition it is stated as follows:

Petitioner states that the respondent is a tenant under her in respect of the upstair portion of premises No. 28, Ramachandra Iyer Street, T. Nagar, Madras 600 017 on a monthly rent of Rs. 350 payable according to English calendar month. Petitioner states that she requires the entire upstair portion in the occupation of the respondent for her own occupation to provide accommodation to her daughter Kanchanamala Thyagarajan who has no residential building of her own in the city of Madras.

In paragraph 7 of the counter-statement it is stated as follows:

The petitioner (tenant) submits that in the instant case the petitioner and other members of her family are admittedly owning more than one house namely the petition premises, besides the petitioner's dwelling house namely No. 1, Jawaharlal Nehru Street, T. Nagar, Madras-17, is also owned by the member of her family and therefore the present petition filed by the petitioner is in contravention of the terms of Section 10(3)(a)(i) of Act XVIII of 1960 as amended by Act XXIII of 1973.

The learned appellate authority starts his judgment stating--

Admittedly the appellant and her married son Ramasundaram and married daughter Kanchanamala for whose requirement and for whose occupation these petitions have been filed are all residing in the same building No. 1, Jawaharlal Nehru Street, T. Nagar, Madras-17, belonging to the appellant. The son Ramasundaram and daughter Kanchanamala have no title to or proprietary interest in the building.

Therefore, I see no reason as to why this admission cannot be taken note of. If really this admission has not been made I do not see why a ground in revision has not been taken in that regard, nor any grievance made that the rent control petitions are vague and the residence of Kanchanamala and Ramasundaram along with the petitioner was ever disputed. It is sure that the appellate authority made a mistake when it says that both of them are residing in the building belonging to the respondent herein. But on that score I do not think that I can interfere with the order of the appellate authority because the appellate authority has not only appreciated the evidence properly but has passed an order correctly The evidence of P.W. 1 discloses that that family consists of 14 members as evidenced by the ration cards and the married sister and the brother for whose requirement the petitions had been filed are all living with the landlady. Therefore, if the landlady, namely the mother, seeks to provide for a separate residence for a member of her family what are the things required under Section 10(3)(a)(i) of the Act: This necessitates me to make reference to the said section which is extracted below:

10(3)(a). Landlord may, subject to the provisions of Clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building: (i) in case it is a residential building, if the landlord requires it for his own occupation of for the occupation of any member of his family if he or any member of his family is not occupying a residential building of his own in the city, town or village concerned.

By a reading of this section only two things emerge, namely : (1) that the person for whose benefit the said section is invoked must not be in occupation of a residential building of his own; and (2) that the person requires the petition-premises for his residence. Whether such claim is made bona fide has to be tested in the light of Section 10(3)(e) of the Act which reads as under:

10(3)(e) The Controller shall, if he is satisfied that the claim of the landlord is bona fide make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not so satisfied he shall make an order rejecting the application:

Provided that, in the case of an application under Clause (c), the 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:

Provided further that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate.

Therefore, the claim made under Section 10(3)(a)(i) of the Act whether bona fide or not alone requires to be tested. Looked at from that point of view the requirements are fully satisfied, namely: (1) admittedly the married daughter Kanchanamala and the son Ramasundaram are living with their parents. I say admittedly because such is the language found in the order of the appellate authority. More so, no valid objection has been taken about the admission in the grounds of revision; (2) the need for occupying the petition-premises is also established. As I said above whether the claim is bona fide or not has to be tested under Section 10(3)(e) of the Act and is fully established by the evidence of P.W. 1 and the ration cards.

3. It is not correct to state that in every case filed the petitioner must enter into the box and depose the requirement. I do not think there is any valid reason why the evidence of P.W. 1, should not be accepted. In the case reported in Sivaprakasam and Ors. v. K. M. Sheriff (1974) T.L.N.J. 195 the position is entirely different because neither was there evidence by the concerned person nor again the facts proved by the other evidence. In the case reported in Nanalal Goverdhandas & Company v. Smt. Samarathai Lalchand Shah : AIR1981Bom1 , in discussing reasonable and bona fide requirements it Was held that that can be established only by the proper evidence of the parties. But that will again depend upon the language of the section. Therefore, that ruling has no application to the case arising under the Tamil Nadu Buildings (Lease and Rent Control) Act, because of the peculiar language of Section 10(3)(e) which I have extracted in the manner stated above. For the same reasoning the ruling reported in China Narayanamma v. Khalli Sahu and Ors. : AIR1982Ori183 , becomes inapplicable. I do not see any relevancy in the rulings reported in Sushil Chander v. Radha Krishnana (1981) All. I.R.C. 711, and in Muttulal v. Radhe Lal 1975 R.C.J. 86. Hence these revisions are dismissed. However, there will be no order as to costs. Three months' time is granted on the specific condition that the landlady should not be obliged to take out execution petition for evicting the tenants.


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