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Hemalnath Vs. B. Kasthuri - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1975)2MLJ25
AppellantHemalnath
RespondentB. Kasthuri
Cases Referred and Kangu v. Ahmed Unnisa Begum
Excerpt:
- .....and that the landlady is entitled to maintain the application as her husband was an employee in an essential service. in this civil revision petition, a civil miscellaneous petition under section 11 (4) of act xviii of 1960 praying that all further proceedings be stopped in the civil revision petition and that a direction may be given that the landlady be put in possession, was also filed by the landlady. no counter-affidavit has been filed by the tenant as far as this petition is concerned.2. the rent controller found that the requirement of the landlady of the portion under the occupation of the tenant for additional accommodation was bona fide. therefore, he allowed the petition of the landlady and directed eviction of the tenant. on appeal, the appellate authority confirmed the.....
Judgment:

P.S. Kailasam, J.

1. The Civil Revision Petition is filed by the tenant against the order passed by the appellate authority, Second Judge, Court of Small Causes, Madras, directing his eviction on the ground that the landlady bona fide required the premises for additional accommodation and that the landlady is entitled to maintain the application as her husband was an employee in an essential service. In this Civil Revision Petition, a Civil Miscellaneous petition under Section 11 (4) of Act XVIII of 1960 praying that all further proceedings be stopped in the Civil Revision Petition and that a direction may be given that the landlady be put in possession, was also filed by the landlady. No counter-affidavit has been filed by the tenant as far as this petition is concerned.

2. The Rent Controller found that the requirement of the landlady of the portion under the occupation of the tenant for additional accommodation was bona fide. Therefore, he allowed the petition of the landlady and directed eviction of the tenant. On appeal, the appellate authority confirmed the finding that the landlady bona fide required the premises for her own accommodation. Before the appellate authority it was contended on behalf of the tenant that the tenant is employed in the railway service, an essential service, and entitled to the benefit of Section 10 (4) of the Act, and that as the landlady is not employed in essential service, she is not entitled to have the tenant evicted. The appellate authority held that as the landlady's husband is in essential service, even though the landlady's husband is not the owner of the property, the requirement is for the benefit of the entire family and since the landlady's husband, who is the head of the family, is in essential service, that can be taken into consideration in finding that since the landlady's husband also is in essential service, the tenant is not entitled to the protection asked for.

3. In the revision petition, Mr. Purushothaman, learned Counsel for the tenant, submitted that the landlady is not entitled to ask for eviction, as the landlady is not in essential service. Section 10 (4) of the Act provides that no order for eviction shall be passed under Sub-section (3) against any tenant who is engaged in any employment or class of employment, notified by the Government as an essential service for the purposes of that sub-section, unless the landlord is himself engaged in any employment or class of employment which has been so notified. It is not in dispute that the landlady's husband is employed in an essential service. The only question that arises is whether the section requires that the landlady herself should be employed in an essential service or whether the employment of her husband in the essential service is sufficient to confer benefit on her. Reading the section literally, it appears that the landlord should be employed in the essential service. But the word ' landlord ' in the various provisions of the Act has been given a wider meaning by Courts. In Saraswathi v. Vadivelu Chettiar : (1967)2MLJ81 , in construing the word ' landlord occurring in Section 10 (3) (a) (iii), following the decisions reported in Kolaindavelu Chettiar v. Koolavana Chettiar (1961) 1 M.L.J. 184, and Kangu v. Ahmed Unnisa Begum : (1963)1MLJ97 , it was held that the landlord's requirement for his own occupation would include the requirement of his closer relatives, which would depend upon the social customs, habits, usage, practice, in the particular community, etc, The benefit conferred on the tenant belonging-to an essential service, who is not liable to eviction, is taken away only when the-landlord also belongs to an essential service. In construing the words, I feel that the Court will not be justified in giving a very restricted meaning to the word especially when the Courts have generally given a wider interpretation. ' Landlord ' is defined in Section 2 (6) as including a person who is receiving or is entitled to receive the rent of a building whether on his own account or on behalf of another. In this case, the landlady's husband would have been perfectly entitled to receive the rent on behalf of his-wife, and if the petition was filed on that basis, the husband would have claimed' as landlord and defeated the claim of the tenant that he is not liable to be evicted, as the husband is in the essential service itself. While the intention of the Act is to prevent unreasonable eviction of the tenant, it was not intended to be harsh on the landlord, whose requirement was. genuine. It would be contrary to all established customs and usages prevalent in the society to hold that the husband's, requirement is not the requirement of the wife, or the exemption to which the husband is entitled is not available to the wife. As already pointed out, by appropriate pleadings, the plea of the tenant could have been successfully resisted. Taking all these circumstances into account, I agree with the appellate authority that the words ' landlord is himself engaged in any employment or class of employment which has been so notified' should be construed to include landlady's husband being engaged in essential service. I do not see any ground for not accepting the conclusion arrived at by the appellate authority.

4. In addition the petitioner cannot resist the miscellaneous petition filed by the landlady for stopping all proceedings in the Civil Revision Petition. The tenant has not even filed a counter-affidavit to this miscellaneous petition. In the miscellaneous petition it is alleged that the tenant has not paid the rent and is in arrears for about 11 months before the date of this miscellaneous petition. It is also alleged that in the written statement filed in the suit, the tenant has admitted that he is in arrears of rent from November, 1973. Section 11 of the Act provides that no tenant against whom an application for eviction has been made by a landlord under Section 10 shall be entitled to contest the application before the Controller under that section, or to prefer any appeal under Section 23 against any order made by the Controller on the application, unless he has paid or pays to the landlord, or deposits with the Controller or the appellate authority, as the case may be, all arrears of rent due in respect of the building up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building until the termination of the proceedings before the Controller or the appellate authority, as the case may be. Though this sub-section is strictly applicable to the proceedings before the Rent Controller and the appellate authority, the principle can be and should be applied in proceedings in revision petitions also. The tenant cannot refrain from paying the rent merely because he has filed a civil revision petition. Whether Section 11 (1) is applicable or not, the civil revision petition is liable to be dismissed on the ground that the tenant had defaulted in the payment of rent pending the civil revision petition. On this ground also, this revision petition is dismissed with costs. C.M.P. No. 10142 of 1974 is allowed.


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