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Daba Industrial and Trading Company (Pvt.) Limited and anr. Vs. Dr. B. Chenakesavan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1984)1MLJ291
AppellantDaba Industrial and Trading Company (Pvt.) Limited and anr.
RespondentDr. B. Chenakesavan
Excerpt:
- .....in r.c.a. no. 1479 of 1982, dated 1st february, 1983, reversing the dismissal order! of the rent controller and granting an order of eviction in favour of the landlord.2. the landlord filed h.r.c. no. 3876 of 1981, under section' 10 (3) (a) (i) of tamil nadu act xviii of 1960 on the ground of bona fide requirement of the building for the occupation of his son arid daughter-in-law. the demised building forms the rear portion of the building which is under the occupation of the landlord. the tenants have been paying a monthly rent of rs. 500 which is made up of rs. 400 for the building and rs. 100 for amenities. the landlord is occupying the front portion of the building consisting of three rooms, hall, an open verandah, kitchen and a servant's bath room at a distance. the landlord.....
Judgment:
ORDER

Fakkir Mohammed, J.

1. The tenants are the revision petitioners and the revision petition has been filed against the order of the appellate authority (III Judge, Small Causes Court, Madras) in R.C.A. No. 1479 of 1982, dated 1st February, 1983, reversing the dismissal order! of the Rent Controller and granting an order of eviction in favour of the landlord.

2. The landlord filed H.R.C. No. 3876 of 1981, under section' 10 (3) (a) (i) of Tamil Nadu Act XVIII of 1960 on the ground of bona fide requirement of the building for the occupation of his son arid daughter-in-law. The demised building forms the rear portion of the building which is under the occupation of the landlord. The tenants have been paying a monthly rent of Rs. 500 which is made up of Rs. 400 for the building and Rs. 100 for amenities. The landlord is occupying the front portion of the building consisting of three rooms, hall, an open verandah, kitchen and a servant's bath room at a distance. The landlord is a retired Engineer and his wife is a Doctor. Out of the three rooms in their occupation one was kept exclusively for the office purposes of the landlord, one was exclusively used by his wife for her office work and for writing books and the third room is used as a common room for pooja purpose and kitchen, while the main hall was used for receiving friends and guests. The landlord's son Dr. B. Varaprasad was working in the M.S.I. Hospital, Madras and was residing in the quarters allotted to him. The landlord's daughter-in-law also is a Doctor and is employed in King's Institute, Guindy. Because the landlord's son joined M. S. Course, he had to vacate the quarters provided to him in E.S.I. Hospital and is occupying a rented building. It is under those circumstances the eviction petition was filed for the-requirement of the landlords son.

3. The tenants contested the eviction petition-pleading that an earlier eviction petition filed by the landlord on the grounds of wilful default and sub-letting was ultimately dismissed, that the requirement is not bonafide, since : the big portion in the occupation of the landlord, who is a retired Engineer, is sufficient for the occupation of his only son who is a Doctor and that the petition has been filed with the mala fide intention of some how or other evicting the tenants.

4. The learned Rent Controller framed two-points for consideration, one as to the maintainability of the eviction petition under Section 10(3) (a) (i) of the Act and the other as to the bona fide requirement of the landlord for the occupation) of his son. On the first point, the learned Rent Controller found that the petition is maintainable under Section 10(3) (a) (i) of the Act and on the next question of bona fide requirement, he found that even though the requirement for the occupation of the landlord's son may be bona fide; the requirement for the non-residential purpose of the landlord's son cannot be said! to be 'bona fide and on that finding he has dismissed the eviction petition. The landlord! filled R.C.A. No. 1479 of 1982 before the Appellate Authority against the finding and dismissal of the eviction petition.

5. It appears that in the course of arguments before the appellate authority it was urged on behalf of the tenants that the admitted rent being Rs. 500 per mensem, the demised building is exempt from the provisions of Tamil Nadu Act (XVIII of 1960). In paragraph 11 of the order of the appellate authority, a reference was made to the effect that one other contention raised by the learned Counsel for the appellant (mistake; for the tenants) is that the rent for the petition mentioned premises is Rs. 500 and, therefore, the building is exempt under the provisions of Tamil Nadu Act (XVIII of 1960), and that the petition for eviction is not maintainable and such a contention was raised only in the appellate Court. The Appellate authority has also observed in the same paragraph that having submitted before the jurisdiction of the Rent Controller and since Rs. 400 alone is collected towards the rent and Rs. 100 is collected towards the amenities, the demised building is not exempt from the provisions of Act (XVIII of 1960). So far as the requirement of the landlord for the occupation of his son is concerned, the appellate authority reversed the finding of the Rent Controller and found that the requirement is a bona fide one. Hence this revision petition against the finding and the decision of the appellate authority which are unfavourable to the tenants.

6. In the grounds of the revision petition, the foremost ground is that the appellate authority failed to see that the landlord issued a single receipt for Rs. 500 towards the Monthly rent and that as such the appellate authority and the Rent Controller have no jurisdiction in view of Section 30 of Act * (XVIII of 1960). The tenants have also, raised other grounds relating to the requirement of the building for the landlord's son's occupation.

7. The learned Counsel for the revision petitioners has argued that even though no specific plea was raised before the Rent Controller that the demised building is exempt from the provisions of Act (XVIII of 1960), the ground being a legal one based on Section 30 of Act (XVIII of 1960), it was open to the tenants to raise the same before the appellate authority, that the appellate authority failed to give a definite finding whether the demised building is exempt from the provisions of Section 30 of Act (XVIII of 1960), and that even in the Court of revision, it is open to the tenants to raise the same question, of law, which is a vital question touching the root of jurisdiction.

8. It is common case in : the eviction petition ;and in the counter filed by the tenants that the tenants were paying Rs. 500 per month as rent out of which Rs. 400 was; allocated towards the building and Rs. 100 was allocated towards the amenities provided by the landlord in the said building, which is in the occupation of the tenants. Of course, there is no definition of the word 'rent' in the Act. However, while defining the words 'landlord' and 'tenant' in Section 2(6) and 2(8) of Act (XVIII of 1960), it is stated that 'landlord' includes the person, who is receiving or is entitled to receive the rent of a building and 'tenant' means any person by whom or on whose account rent is payable for a building. Section 30 (ii) of Act (XVIII of 1960), provides that nothing contained in Act (XVIII of 1960), shall apply to any residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds four hundred rupees. Admittedly, the rent paid by the tenants exceeds Rs. 400 per month since the rent paid is Rs. 500 per month. In order to avoid the assessment of property tax, the landlord might have apportioned the monthly rent of Rs. 500 as Rs. 400 towards the building and Rs. 100 towards the amenities provided by him in that demised building. But the term that can be used for the amount paid by the tenants for the occupation of the demised building can only be 'rent'. But for the occupation of the demised building, the tenants could not have enjoyed the amenities contained in the building. The landlord could not have leased out the amenities alone to the tenants without the building. Therefore, there cannot be any doubt that the tenants have been paying a rent of Rs. 500 per month for the residential! demised building and hence the demised building is exempt from the provisions of Act (XVIII of 1960), in .View of Section 30 (it) of Act (XVIII of 1960).

9. In fact in paragraph 3 of the petition, the landlord has specifically stated that the tenants have taken the demised building on a monthly rent of Rs. 500 which is made up of Rs. 400 for rent and Rs. 100 for providing amenities. The same has been admitted in variation by the tenants in paragraph 3 of the counter. The landlord has not used any other nomenclature for the payment of Rs. 100 per month. Therefore, the entire sum of Rs. 500 paid by the tenants is the monthly rent for the demised building, which is a residential one even though a small portion of it has been used for official purposes of the tenants. That is why, the landlord has mentioned in the eviction petition that the building is required for the residential : purposes as well as for using a portion for the Clinic of his son. Thus the provisions of Section 30 of Act (XVIII of 1960), are clearly attracted to the demised building and the provisions of Act (XVIII of 1960), cannot be -applied to the demised building.

10. It has been held in Sakimtda Rajappa Kamala : (1972)2MLJ454 , that ,the term 'rent' used in the Act would include all payments agreed to be paid by the tenant to his landlord for the use and occupation not only of the building and furniture but also for rates, electricity, water and other amenities including services arid that in other words, any sum of money which the tenant agrees to pay as consideration for the tenancy would be rent. Admittedly, the main purpose for which the building was leased out in favour of the tenants is residential. Therefore, in order to attract the provisions of Section 30 of Act (XVIII of 1960), the demised building shall be deemed to be a residential building and not a non-residential. Thus but for the application of Section 30 (ii) of the Act, the demised building will be a building within the ambit of Section 2(2) of Act (XVIII of I960). Section 2(2) (b) specifically provides that the term, 'building' includes any furniture supplied, by the landlord for use an such building or hut or part of a building or hut, but does not include a room in a hotel or boarding house. It is nobody's case that the demised building is a room in a hotel or boarding house. Thus the ostensible purpose for which the building was Jet is for residential and it is only as such the landlord has treated the same in the eviction petition also.

11. Since the tenants did not raise this specific plea before the Rent Controller in the counter statement or in the course of the arguments, the learned appellate authority has been under the mistaken impression that such legal objection which goes to the root of the jurisdiction cannot be raised by the tenants. The question of jurisdiction under Section 30 of the Act does not deal with the territorial or pecuniary jurisdiction but the exclusive jurisdiction of the Rent Controller under the provisions of Act XVIII of 1960. A District Munsif cannot entertain a title suit regarding the properties worth Rs. 10 lakhs, since only the Subordinate Judge in the mofussil has got jurisdiction to entertain such a suit. In like manner, the Rent Controller has been vested with jurisdiction to entertain eviction petition regarding a residential building if only the monthly rent of the same does not exceed Rs. 400. If the rent is above Rs. 400 per month, he has absolutely no jurisdiction. If that question been raised before the Rent Controller and he had found that he has no jurisdiction to entertain the eviction petition in view of Section 30 of the Act, he would not have decided the other point for consideration, namely, whether the requirement of the landlord is bona fide under Section 10(3)(a)(i) of the Act, since the consideration of Section 10(3) (a) (i) of the Act is hit by Section 30 of the Act. It is the duty of the office to have returned the eviction petition stating that the demised building is exempt under Section 30 of the Act XVIII of 1960 and hence the Rent Controller has no jurisdiction to entertain the eviction petition. Such a vital question ousting the jurisdiction of the Rent Controller has been omitted to be noticed by the Rent Controller and when it was brought to the notice of the appellate authority, the appellate authority ought to have either given a finding on that question or ought to have remanded the matter for the finding of the Rent Controller on that point. If the matter had been remanded by the appellate authority, the Rent Controller would have definitely held that he had no jurisdiction under Section 30 of the Act. It has been held consistently by this Court that even though an eviction petition was allowed on the finding of one of the several grounds having been proved and as : against the same an appeal has been filed by the tenant, it is open to the landlord to argue before the appellate authority that the findings of the Rent Controller on the other grounds were not correct and the eviction order can be sustained on the grounds, which were found against the landlord by the Rent Controller in the appeal filed by the tenant. In like manner, in the appeal filed by the landlord, it is open, to the tenant to raise such vital legal question, Which goes into the root of the jurisdiction of the special Tribunal, before the appellate authority. Such a dictum cannot be assailed by the landlord in the face of the very pleadings of both the parties in the trial Court The Rent Controller has failed to frame a point for consideration on the question whether the demised building is exempt from the provisions of Act XVIII of 1960.

12. On the question of bona fide requirement for the landlord's son is concerned, it is purely a question of fact and the High Court sitting in revision cannot sit in judgment as an appellate Court over the finding of the appellate authority. The finding of the appellate authority is based on facts and evidence and this Court does not find any material to interfere with such finding of fact. However, such finding of fact will depend upon the finding on the question whether the demised building is exempt from the provisions of Section 30 of Act (XVIII of 1960). Therefore, while confirming the finding of the appellate authority on the question of bona fide requirement of the landlord for the occupation of his son, the proceedings are remitted back to the Rent Controller and the result of H.R.C. No. 3875 of 1981 will depend upon the finding of the Rent Controller as to whether the demised building is exempt from the provisions of Act XVIII of 1960, in view of Section 30 of the said Act. Therefore, this revision petition is allowed in part, the order of eviction passed by the appellate authority is set aside while confirming the finding of the appellate authority on the question of bona fide requirement of the landlord for his son's occupation and the entire proceedings are remitted back to the Rent Controller so that the Rent Controller may deal with the petition in the light of the above observations, and dispose of the same within a month from the date of the receipt of the records.

13. The parties are directed to bear their respective costs in the appeal and in the revision proceedings. The costs will be provided for by the Rent Controller so far as the House Rent Control original petition is concerned.


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