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Karayandi Kousalya Vs. Kunhayi Sahia - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtChennai High Court
Decided On
Reported in(1982)2MLJ273
AppellantKarayandi Kousalya
RespondentKunhayi Sahia
Cases Referred and Sri Raja Lakshmi Dyeing Works v. Rangaswami
Excerpt:
.....of pondicherry, has got certainly jurisdiction to revise further the revisional order of the learned district judge, who had exercised his jurisdiction under section 25 of the pondicherry buildings (lease and rent control) act, 1959. under these circumstances, the preliminary point raised in relation to the jurisdiction of this court, by the learned counsel for the respondent is held to be not sustainable. though the respondent's joint occupation of the premises may be a perennial one, yet, when she alleges that it would be prejudicial to the interest as well as the health of her children if she continues to live in that premises in which of course, admittedly she is having some interest along with others who are in occupation, this court has to hold that the said position, namely,..........which is exclusively her own from the tenant. it is not possible to uphold the contention of the tenant revision petitioner herein, on the basis of any decision or any provision of law, that the respondent's joint occupation of the premises would show that the respondent is a landlady not possessing any other premises for her occupation as her own. though the respondent's joint occupation of the premises may be a perennial one, yet, when she alleges that it would be prejudicial to the interest as well as the health of her children if she continues to live in that premises in which of course, admittedly she is having some interest along with others who are in occupation, this court has to hold that the said position, namely, the juxtaposition in which the landlady herein has been.....
Judgment:

S. Swamikkannu, J.

1. This is a civil revision petition filed against the order of the learned Principal District Judge, Pondicherry in M.R.P. No. 23 of 1979, dated 27th March, 1980, dismissing the revision petition that was filed under Section 25 of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 by the tenant, Karayandi Kousalya. The said petition under Section 25 of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 by the tenant was to set aside the order, dated 30th June, 1979, passed by the appellate authority in C.M.A. No. 69 of 1977 and also the order of the Rent Controller, Mahe, dated 23rd November, 1977, passed in H.R.C.O.P. No. 10 of 1977.

2. The petition for eviction was filed before, the learned District Munsif and Rent Controller, Mahe as R.C.O.P. No. 10 of 1977 by the landlady under Section 10(3)(a)(i) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 for eviction of the tenant Karayandi Kousalya on the ground of bona fide requirement of the premises in question for occupation of the landlady.

3. The petition was actually filed by the landlady alleging that she is the owner of the building described in the schedule which was leased to the revision petitioner herein on 1st September, 1971, on a monthly rent of Rs. 25. Though the period of the kaichit expired, the tenant is still in possession and she has kept the rent in arrears subsequent to April, 1977. It was further averred that the landlady had no house of her own in possession at Mahe. The landlady now resides with her father in a house wherein she has no right. The landlady finds it very much inconvenient to continue her present joint residence, both for want of space and health reasons. In the circumstances, the landlady bona fide intends to have a separate residence. Though the landlady has issued a registered lawyer's notice to the tenant terminating tenancy and requiring her to surrender possession, yet the tenant sent a reply with false and untenable contentions. Hence the landlady has filed the petition against the tenant on the ground that the tenant has wilfully committed default in the payment of rent and that she, namely, the landlady, bona fide requires the premises in question for her own occupation.

4. On the other hand, the said petition for eviction was resisted by the tenant the revision petitioner herein, on the ground that the tenant is in occupation of the house from 1964, that the rent as per 1964 kaichit was only Rs. 15 and when the kaichit was renewed in 1971, the rent was enhanced to Rs. 25, and that the rent for the month of May was offered, but refused. Then the amount was sent by money order and that also was refused. In September again, the rents for the months of May, June, July and August were sent and the respondent herein refused the same. Hence, there was no wilful default and the entire arrears of rent was paid in Court. The landlady is possessed of other buildings and the house she presently lives in is a convenient one and belongs to her. It is further contended by the tenant that the health reasons mentioned by the landlady are false.

5. On the pleadings raised by both sides, the learned Rent Controller framed two points for consideration and they are--(1) Whether the tenant has committed wilful default in the payment of rent; and (2) Whether the landlady requires bona fide the premises in question for her own use and personal occupation?

6. Before the learned Rent Controller, the landlady Sahiya examined herself as P.W. 1, and the tenant Karayandi Kousalya examined herself as R.W. 1. On behalf of the petitioner Exhibit P-1 kaichit, dated 1st September, 1971 executed by the tenant to the landlady, Exhibit P-2, a true copy of the registered lawyer's notice, dated 11th June, 1977, issued to the tenant with postal receipt and acknowledgment and Exhibit P-3, a copy of the reply notice, dated 26th June, 1977, sent to the landlady's advocate by the tenant's advocate were filed. On behalf of the tenant, revision petitioner herein, Exhibit R-1, a gift deed, dated 21st September, 1970, executed by Kunhikuttiali to Kunhayi Sukara Beebi and the petitioner and Exhibits R-2, R-3, R-4, R-5 and R-6 money order receipts and coupons were filed. On the evidence thus available on record, the learned Rent Controller came to the conclusion on point No. 1, that the tenant had not committed any wilful default in the payment of rent and as such, the said ground alleged by the landlady is not sustainable. Therefore, the said point was answered against the landlady. Under point No. 2, the learned Rent Controller held that the house in which the landlady is presently residing cannot be defined as residential building of her own. The learned Rent Controller has also held that the argument of the learned Counsel for the tenant that the landlady has got already shelter and that her wish for eviction of the tenant is irrational, cannot be accepted for the reason that it has been held in the decision reported in Janba v. Rajesh kumar : AIR1976Bom70 , that the law does not require the landlady to establish absolute need or absolute requirement without which she shall have no shelter. The learned Rent Controller held that the requirement of the petition premises by the landlady for her personal occupation is a genuine and bona fide one. Hence the said point was answered in the affirmative. In the result, the petition was allowed with costs and eviction of the tenant was ordered. The tenant had stated that she had no other house of her own or her relatives and she does not have much income. Therefore, the learned Rent Controller had granted two months' time to the tenant for surrendering vacant possession of the petition premises to the landlady enabling her to find out alternative accommodation.

7. Aggrieved by the above decision of the learned Rent Controller, an appeal was preferred by the tenant in C.M.A. No. 89 of 1977 before the learned Principal Subordinate Judge, Pondicherry, who disposed of the same by his judgment and decree, dated 30th June, 1978, confirming the order of the learned Rent Controller and dismissing the said civil miscellaneous appeal with costs. Aggrieved by the said decision arrived at by the lower appellate Court in the civil miscellaneous appeal the tenant further took the matter on revision under Section 25 of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 before the learned Principal District Judge, Pondicherry who as mentioned already, dismissed the said petition holding that there was no merit in the revision petition. Aggrieved by the above decision arrived at by the revisional Court under Section 25 of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, namely, the Principal District Judge, Pondicherry, the present civil revision petition has been filed by the tenant under Section 115, Civil Procedure Code.

8. It is relevant in the connection to note that a point was about to be raised by the learned Counsel for the respondent herein, namely, the landlady, that this second revision to the High Court under Section 115, Civil Procedure Code, is not maintainable, especially when the tenant had exhausted her remedy of revisional jurisdiction being exercised by the competent Court, namely, the learned Principal District Judge's Court at Pondicherry under Section 25 of the said enactment and once again such a revisional jurisdiction cannot be exercised by virtue of the provisions under Section 115 of the procedural law of the land, namely, the Civil Procedure Code. In this regard, though no direct decision has been referred to under the special enactment by the learned Counsel for the respondent-landlady, yet, he would cite an authority in which the provision under Section 25 of the Provincial Small Cause Court Act had been dealt with by the Supreme Court reported in Vishesh Kumar v. Shanti Prasad : [1980]3SCR32 . It has been held in that case that a mutually exclusive jurisdiction has been assigned to the High Court and the District Court within the meaning of Section 115. that to recognise a revisional power in the High Court over a revisional order passed by the District Judge would plainly defeat the object of the legislative scheme, that the intent behind the bifurcation of jurisdiction, namely, to reduce the number of revision petitions filed in the High Court, would be frustrated and that the scheme would, in large measure, lose its meaning. It was further held in the said decision referred to by the learned Counsel for the respondent herein that if a revision petition is permitted to the High Court against the revisional order of the District Court arising out of a suit of a value less than Rs. 20,000, a fundamental contradiction would be allowed to invade and destroy the division of a revisional power between the High Court and the District Court, for, the High Court would then enjoy jurisdictional power in respect of an order arising out of a suit of a valuation below Rs. 20,000 and that was never intended at all. The decision in Jupiter Chit Fund (P.) Ltd. v. Dwarka Dinesh Dayal : AIR1979All218 was approved by the Supreme Court in the said decision in Vishesh Kumar v. Shanti Prasad : [1980]3SCR32 , referred to by the learned Counsel for the respondent herein. By pointing out the ratio decidendi in the said decision of the Supreme Court, the learned Counsel for the respondent herein, contends that this revision against the order pronounced by the learned Principal District Judge, exercising his jurisdiction under Section 25 of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, cannot be maintained by this Court, because the ratio that has been laid down by the Supreme Court in Vishesh Kumar v. Shanti Prasad : AIR1979All218 , is applicable to the facts of this case. On the other hand, Miss O. K. Sridevi, learned Counsel for the petitioner would contend that this Court has got enough jurisdiction to entertain a revisional order pronounced by the competent Court, namely, the learned Principal District Judge of Pondicherry, as in the instant case, who had exercised his jurisdiction as a revisional authority under Section 25 of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, because of the ratio imbedded in Narayanan v. Pachinayaki : (1974)1MLJ161 . Earned Counsel for the petitioner herein submits that the revisional jurisdiction of the High Court under Section 115, Civil Procedure Code, is wide enough to take into account the regularity, legality as well as the jurisdictional capacity of an order that had been pronounced by a District Judge under Section 25 of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, especially after the amendment made in the said enactment, namely, Act VIII of 1980, by substituting Section 25 by Section 18 of Act VIII of 1980. Section 18 of the Pondicherry Buildings (Lease and Rent Control) (Amendment) Act, 1980 reads as follows:

For Section 25 of the Principal Act, the following section shall be substituted, namely-

25. Revision.--(1) The High Court may, on the application of any person aggrieved by an order of the appellate authority, call for and examine the record of the appellate authority, to satisfy itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and if, in any case, it appears to the High Court that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, it may pass orders accordingly.

(2) Every application to the High Court for the exercise of its power under subsection (1) shall be preferred within one month from the date on which the order or proceeding to which the application relates is communicated to the applicant:

Provided that, the High Court, may in its discretion, allow further time not exceeding one month for the filing of such application, if it is satisfied that the applicant had sufficient cause for not preferring the application within the time specified in this sub-section.

Thus we see that the provision under Section 25 relating to revision, as it existed in the Pondicherry Buildings (Lease and Rent Control) Act (V of 1969), has undergone an amendment by virtue of the substitution of the said section by Section 18 of the amendment Act referred to above and extracted as above. A reading of this amendment provision in the new amendment Act in relation to the original Section 25 of the Principal Act (V of 1969), clearly shows that this Court, namely, the High Court of Judicature at Madras, exercising jurisdiction over the territory of Pondicherry, has got certainly jurisdiction to revise further the revisional order of the learned District Judge, who had exercised his jurisdiction under Section 25 of the Pondicherry Buildings (Lease and Rent Control) Act, 1959. Under these circumstances, the preliminary point raised in relation to the jurisdiction of this Court, by the learned Counsel for the respondent is held to be not sustainable.

9. Learned Counsel for the respondent also cited before me the decision reported in Kolandaivelu Chettiar v. Koolavana Chettiar (1961) 1 M.L.J. 184 : 75 L.W. 164, Purushotham Chettiar v. Parasmal Sowcar : (1977)1MLJ275 and Sri Raja Lakshmi Dyeing Works v. Rangaswami : AIR1980SC1253 . This Court had in its mind the ratio decidendi imbedded in those decisions and followed the same in discussing the various points raised in this revision petition.

10. Now let me proceed to discuss the various points raised in the revision petition by Miss O.K. Sridevi, learned Counsel for the tenant, revision petitioner. The first and the foremost point that had been stressed on behalf of the tenant by Miss O.K. Sridevi is that the landlady owns jointly with another, a premises which is being actually occupied by her and as such she cannot be considered as a landlady not possessing any other premises in question for her occupation as her own. In this regard, she submits that all the other points urged on behalf of the landlady that her children would get disease of filarial nature due to some of her relatives living in the petition premises in which the landlady is now living, are not tenable, especially when the landlady has not properly proved the said allegations. It is relevant in this connection to note that the learned Rent Controller, learned Principal Subordinate Judge as an Appellate Authority and the learned Principal District Judge as revisional authority have concurrently found that the premises in question, namely, the premises which is under the occupation of the revision petitioner herein, is bona fide required for the occupation of the landlady respondent herein, and therefore, it is necessary that the entire evidence available on record has to be completely scrutinised to sec whether there has been any grave error made on the face of the records, namely, on the basis of the evidence available on record, both oral and documentary, and whether any illegality or irregularity has been committed by the learned Principal District Judge in arriving at the decision, in that, he had confirmed the decision of the lover appellate Court in the civil miscellaneous appeal that has been preferred by revision petitioner herein against the order of the learned Rent Controller, and in that view this Court examined the contentions, of course, the main contention raised by Miss O.K. Sridevi, but finds that the said contention cannot be upheld due to the reason that the joint occupation with others who are entitled to an interest along with the landlady in a particular premises, cannot be said to be a basis to preclude from exercising her right to get back possession of the premises which is exclusively her own from the tenant. It is not possible to uphold the contention of the tenant revision petitioner herein, on the basis of any decision or any provision of law, that the respondent's joint occupation of the premises would show that the respondent is a landlady not possessing any other premises for her occupation as her own. Though the respondent's joint occupation of the premises may be a perennial one, yet, when she alleges that it would be prejudicial to the interest as well as the health of her children if she continues to live in that premises in which of course, admittedly she is having some interest along with others who are in occupation, this Court has to hold that the said position, namely, the juxtaposition in which the landlady herein has been placed, does not deprive her of the right to recover possession of the petition premises which is exclusively her own alleging the ground that she requires the petition premises for her own occupation. In the instant case, both the negative aspect of herself not having exclusive and full ownership of the premises which she has been occupying as well as the positive aspect that she is the full owner of the premises in question in which the present revision petitioner is living as a tenant has been, completely established in this case beyond all reasonable doubt. This Court does not find anything wrong in the appreciation of evidence available on record, either by the learned Rent Controller or by the lower appellate authority or even by the learned Principal District Judge of Pondicherry who had exercised his revisional jurisdiction under Section 25 of the Pondicherry Buildings (I and Rent Control) Act, 1969. Under these circumstances, there is no merit in this revision petition. This civil revision petition is dismissed with costs.

11. Miss O.K. Sridevi, learned Counsel for the petitioner herein submits that by exercising inherent jurisdiction vested with this Court, this Court can grant further time of three months from today for the revision petitioner herein to vacate the premises in question. The learned Counsel for the respondent opposes this request made on behalf of the petitioner. But on a careful and anxious consideration of the entire evidence available on record with respect to this aspect of the prayer that had emanated on behalf of the revision petitioner herein, this Court finds that, in the interests of justice, some time has to be granted for the revision petitioner herein to vacate the premises and under those circumstances, two months' time is granted from today for the revision petitioner herein to vacate the petition premises.


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