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P.A. Arumugham Vs. National Palayakot Company - Court Judgment

LegalCrystal Citation
SubjectTenency
CourtChennai High Court
Decided On
Reported in(1973)2MLJ380
AppellantP.A. Arumugham
RespondentNational Palayakot Company
Cases ReferredIn Mohammed Jaffar v. Palaniappa Chettiar
Excerpt:
- .....in this case. the point involved in the appeal is whether the landlord required the portion in the tenant's occupation bona fide for his additional accommodation. it is not for the court to decide on the sufficiency of the accommodation and base its conclusion as regards bona fides of the claim on the decision as to sufficiency or insufficiency of accommodation available to the landlord.14. as regards hardship also, the appellate authority has not correctly applied the principles laid down as to how advantage and disadvantage should be decided. in mohammed jaffar v. palaniappa chettiar : (1964)1mlj112 already noticed by me, the bench has clearly set out that it is not the object of the proviso to weigh the hardship of the tenant as against the advantage of the landlord on delicate scales.....
Judgment:

P.R. Gokulakrishnan, J.

1. The landlord is the petitioner. He filed the eviction petition against the respondent-tenant under Section 10(3)(c) of the Madras Buildings (Lease and Rent Control) Act, XVIII of 1960. In that petition, the landlord has averred that his family has grown, that one of his daughters has since been married and another daughter and son also have to be married shortly, that on account of the growth of the family as well as increase in the number of visitors and guests owing to the alliance etc., he finds that the present accommodation in the first floor is very inadequate to meet his needs, that he is put to such inconvenience and hardship for want of sufficient accommodation that the rear portion of the first floor in the occupation of another tenant, being small and inconvenient, is not sufficient to meet the needs of the petitioner and that the landlord requires the ground-floor portion in the occupation of the respondent-tenant for bona fide additional accommodation.

2. The respondent-tenant contended that there are no bona fides in the prayer of the landlord, that the portion in the occupation of the respondent is a non-residential one and as such it cannot be claimed for residential purposes, that the rear portion in the first-floor has since fallen vacant and as such the landlord can take possession of the same which will accommodate a big family, that the accommodation available for the petitioner in the first-floor is more than sufficient for his convenient enjoyment, that the respondent is carrying on business for a number of years and has set up a good will in the locality, that the respondent cannot get any alternative accommodation in the same locality and that in any event the hardship that will be caused to the respondent in directing his eviction will really outweigh the convenience petitioner might enjoy in that event.

3. The Sixth Judge, Court of Small Causes who is the Rent Controller, allowed the eviction petition and ordered the eviction of the respondent herein. On appeal, the Appellate Authority reversed the finding of the Rent Controller and dismissed the petition for eviction, holding that there are no bona fides in the petitioner's claim for additional accommodation and that the hardship that would be caused to the respondent would outweigh the convenience that would accrue to the landlord in case of eviction.

4. As regards the maintainability of the eviction petition, raised by the respondent herein, on the ground that the portion in his occupation is only non-residential and as such the petitioner cannot get that portion for residential purposes, the same was negatived by both the Courts below. There is no argument on this aspect of the case now before this Court, and as such the conclusion arrived at by the Courts below that the petition is maintainable, will stand good.

5. Thiru K.S. Desikan, the learned Counsel appearing for the petitioner, took me through the judgments of the Courts below and also the evidence on record and the relevant documents in the case. It is clear from the evidence of P.W. 1 that he is working in the National and Grindley's Bank as an Officer drawing a salary of Rs. 1,645, that his eldest son is a Lecturer in the Indian Institute of Technology and is doing research work there to get the Doctorate, that the said son is earning Rs. 620 per mensem, that his next boy is studying B. Tech. in the Indian Institute of Technology, that his eldest daughter is married and that his two other daughters are studying. He had also given evidence to the effect that the existing accommodation is not sufficient for his residence inasmuch as his family is growing and that to maintain the status in relation to his income and strength of his family, it is but necessary to have the portion in the occupation of the respondent herein by way of additional accommodation. He emphatically denied the suggestion that the petition filed by him for eviction is a ruse to somehow or other get rid of the respondent and that there are no bona fides in his petition.

6. A partner of the respondent-firm was Examined as R.W. 1. He deposed that it 1s difficult for them to get an alternative accommodation and that there are no bona fides in the petitioner's requirement for additional accommodation. R.W. 3, who was a tenant in the rear portion in the first-floor, no doubt, deposed that the petitioner tried all methods to get rid of the respondent. But I do not think his evidence will be helpful to the respondent since there is nothing in his evidence to falsify the reasons stated by the petitioner for getting the additional accommodation.

7. Thiru K.S. Desikan, the learned Counsel for the petitioner, supported the judgment of the Rent Controller and submitted that the approach of the Rent Controller, in the light of the relevant decisions, was correct and that it is not for the Court to decide as to how much space the landlord requires for his additional accommodation. According to Thiru K.S. Desikan, the only question the Court has to decide is as to whether there are bona fides in the claim of the landlord, and the other discussions entered into by the Appellate Authority, in order to reject the claim of the landlord, are unnecessary and irrelevant. Thiru K.S. Desikan, also pointed out that the Appellate Authority cannot go into the question as to how much accommodation the landlord requires for his enjoyment in the house, and that, in this case, it has definitely given a finding that the accommodation now available and in the occupation of the landlord is more than sufficient to meet his requirements and of the other members of his family; and this cannot be germane for deciding the bona fides or otherwise of a claim made by a landlord for additional accommodation. Thiru K.S. Desikan, also brought to my notice the material irregularity committed by the Appellate Authority in considering the relative hardships. The finding of the Appellate Authority that considerable hardship would be caused to the tenant, who carries on imports and exports business, if the respondent does not have the business-place near the Harbour, is not a relevant ground to reject the eviction petition based on 'additional accommodation'. The reasoning given by the Appellate Authority, according to Thiru K.S. Desikan, for rejecting the claim of the landlord is not in keeping with the principles laid down by various decisions, with reference to relative advantage and disadvantage as between a landlord and a tenant in the matter of a claim for additional accommodation. Further, according to Thiru K.S. Desikan, the learned Counsel for the petitioner, the Appellate Authority has misdirected itself in finding that the claim made by the landlord is not bona fide.

Section 10 (3) (c) reads as follows:

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.

Section 10 (3) (e) states:

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.

8. Thus, it is seen from the above provisions of the Act that the Court has to consider : (1) the bona fides of the claim; and (2) it should be satisfied before rejecting an application that the hardships which may be caused to the tenant will outweigh the advantage to the landlord.

9. Thiru K.S. Desikan, the learned Counsel appearing for the petitioner cited the decision in Subramanya Iyer v. Lakshmana Ayyar : AIR1950Mad366 , wherein a Bench of this Court stated as follows:

There is no error of jurisdiction or an apparent error of law on the face of the record. The Appellate Tribunal has found that the landlord required the entire house for his occupation. Though the definition of a building in the Act includes a portion of a building, it does not mean that the owner of a house, portions of which have been let separately, cannot file an application for obtaining possession of the entire house as a building. What is sufficient for the landlord is not the real question, but whether he requires the entire building bona fide for his occupation. The finding that he requires it in this case is a finding of fact. The application is therefore dismissed with costs.

From the above decision Thiru K.S. Desikan, the learned Counsel for the petitioner, submitted that the Appellate Authority has erred in going into the question whether the portion now in the possession of the landlord is sufficient for his occupation. According to the decision, the learned Counsel would submit, what is sufficient for the landlord is not the real question, but whether he requires the entire building bona fide for his accommodation, is the question to be decided. I find that the appellate authority has unfortunately misdirected itself in thinking that the bona fide nature of the claim of the landlord depends upon the sufficiency or insufficiency of accommodation in the occupation of the landlord and his requirement of the additional accommodation. On the other hand, the appellate authority ought to have decided the question whether the claim for additional accommodation is bona fide irrespective of whether the landlord is in occupation of a larger area or not. Once the claim of the landlord is held to be bona fide, the Court has no other go except to grant him the relief, although the portion claimed by him may be more than sufficient for his occupation.

Of course, such a conclusion is subject to the proviso to Sub-clause (e) relating to advantage and disadvantage, when especially the petition is one under Section 10 (3) (c).

10. The next decision cited by Thiru K.S. Desikan, the learned Counsel for the petitioner is N. Sampath Chetty v. S.V. Bapulal (1967) 1 M.L.J. 289. No doubt that decision arose out of a petition for eviction for owner's occupation. But, as already referred to the question of bona fides is common both to a claim for owners' occupation and one for additional accommodation. In that decision the Bench stated--

That the landlord has made certain allegations or claims in some earlier proceedings may neither be relevant nor could they affect his bona fides in a later claim so long as it is proved that the landlord honestly desires to occupy the premises for carrying on his business. The fact that he owned several other buildings, which were not mentioned in the petition, is of no consequence as it is entirely open to a landlord to choose which buildings he would require for his business'. So long as the evidence does not justify a finding that the claim is a device and is intended to serve an oblique purpose, it will go a long way towards the claim being honest. In other words, when once it is clear that the claim is not a device very little evidence might be required to find that the claim is an honest one.

From this decision, Thiru K.S. Desikan submitted that the evidence on record and also the reasoning given by the Appellate Authority cannot in any way lead to the conclusion that the landlord, wanted to evict the tenant somehow or other with a view to get rid of him.

11. The next decision cited by the learned Counsel for the petitioner is Mohammed Jaffar v. Palaniappa Chettiar : (1964)1MLJ112 , In this decision, a Bench of this Court has definitely held that what is meant by bona fides is that the landlord should not seek eviction on the pretence of requiring additional accommodation with the oblique motive of achieving some other purposes. The Bench further observed--

The proviso to the section (S. 10 (3)) regarding the hardship to tenant ought not to be read as conferring a practical immunity on the tenant from being evicted. It is not the object of the proviso to weigh the hardship of the tenant as against the advantage of the landlord on delicate scales giving the benefit of a slight tilt in favour of the tenant. The substance of the proviso is that in a proper.. case where the hardship caused to the tenant would be considerable and the advantage accruing to the landlord would be little or small, the application might be rejected.

The next decision cited by the learned Counsel for the petitioner is Kanwar Behari v. Vidhya Devi . That decision dealt with the question of deciding on the relative hardship and advantage as between the landlord and tenant. There, a Bench of the Punjab High Court observed thus:

If the Courts were to divide the premises between a landlord and a tenant on the basis of pure physical sufficiency, it would become impossible in the absence of any express provisions in the Act to adjust the rights of landlord and tenant with respect to the parts divided between them in a case where entire premises are let for residence.

12. Thiru A. Sundaram Ayyar, the learned Counsel appearing for the respondent, also pointed out the evidence in this case as showing that the landlord demanded a higher rent and that since the tenant did not pay the same, the, landlord has come by way of an eviction on the ground of additional accommodation. Thiru A. Sundaram Ayyar also submitted that subsequent to the filing of the eviction petition, a portion in the first floor has fallen vacant and as such the same is enough for the landlord to satisfy his need for additional accommodation. The learned Counsel also submitted that the question of bona fides decided by the Appellate Authority is a question of fact and this Court cannot go into that question once over to come to a different conclusion than the one arrived at by the appellate authority. It is also submitted that the hardship that would accrue to the respondent would outweigh the advantage that would accrue to the landlord, since no alternative accommodation can be had in that locality by the respondent. Thiru A. Sundaram Ayyar, the learned Counsel for the respondent, sought to distinguish the decision in N. Sampathu Chetty v. S.V. Bapulal (1967) 1 M.L.J. 289, on the ground that that decision arose out of a case under Section 10 (3) (a). i.e., a case for owner's occupation, while the present one is one under Section 10 (3) (c), i.e., a case of additional accommodation. Thiru A. Sundaram Ayyar also cited the decision in Davey v. Subramania Iyer : AIR1954Mad514 , wherein a single Judge of this Court discussed with regard to bona fides and the meaning thereof and 'held that it is a question of fact which has to be decided taking into consideration various circumstances, the circumstances varying in each case.

13. As already observed in the foregoing paragraphs, the appellate authority has not directed itself correctly in coming to the conclusion as regards the bona fide nature of the requirement of the additional accommodation as also the question of hardship and advantage as between the tenant and the landlord. The discussion made by the appellate authority as regards sufficiency of accommodation for the landlord is outside the purview of the question at issue in this case. The point involved in the appeal is whether the landlord required the portion in the tenant's occupation bona fide for his additional accommodation. It is not for the Court to decide on the sufficiency of the accommodation and base its conclusion as regards bona fides of the claim on the decision as to sufficiency or insufficiency of accommodation available to the landlord.

14. As regards hardship also, the appellate authority has not correctly applied the principles laid down as to how advantage and disadvantage should be decided. In Mohammed Jaffar v. Palaniappa Chettiar : (1964)1MLJ112 already noticed by me, the Bench has clearly set out that it is not the object of the proviso to weigh the hardship of the tenant as against the advantage of the landlord on delicate scales giving the benefit of a slight tilt in favour of the tenant.

15. The problem of getting alternative accommodation cannot be taken as a relevant ground for rejecting the claim of the landlord in this case. Once the landlord bona fide requires the portion in the occupation of the tenant for his additional accommodation, the fact that the tenant cannot get an alternative accommodation, alone, cannot be the basis to reject the landlord's claim. The respondent-company which has established itself in various parts of the State of Tamil Nadu and has gained a goodwill, can as well have any place at Madras for the purpose of its business. The fact that the present place is very near the Harbour and no alternative accommodation can be got near about the place, should not weigh in the mind of the appellate authority, since the business premises can as well be farther away from the Harbour and the only difficulty is about transport which the tenant has necessarily to face. The evidence on record amply proves that the petitioner, an officer drawing Rs. 1,650 per month, having many children, is entitled to get the portion in the occupation of the respondent, for his additional accommodation.

16. Section 25 of Madras Act (XVIII of 1960) is wide enough in giving power to this Court for the purpose of satisfying itself as to the legality, regularity or propriety of the order of or proceeding before, the Courts below. In view of my above discussion and also of the well-laid down principles in the decisions cited by the learned Counsel for the petitioner, there is no difficulty in accepting that the claim made by the petitioner herein for additional accommodation is bona fide, and satisfies the requirements of Section 10 (2) (c) of the Act.

17. In these circumstances, the civil revision petition is allowed, with the result there will be an order of eviction against the respondent herein. Taking into consideration that the respondent has to get an alternative accommodation in the City of Madras, for running the business, six months' time is granted for vacating. There will be no order as to costs in the civil revision petition.


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