A. Yuvaraj v. B. Rajeswari — 1988 DIGILAW 428 (MAD)

ORDER Srinivasan, J. 1. The tenant is the revision Petitioner. The respondents are sisters. They are the owners of the petition buildings, having purchased the same under a document dated 27-3-1982. The petition for eviction was filed under Section 10(2)(i) - wilful default in payment of rent, Section 10(2)(ii)(b) -user of the building for a different purpose, Section 10(2)(v)-guilty of nuisance to the occupiers of other portions in the same building or buildings in the neighbourhood, Section 10(3)(i)-requirement for own occupation and Section 10(3)(c)-additional accommodation, under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, hereinafter referred to as 'the Act'. 2. The Rent Controller rejected the grounds of wilful default in payment of rent and additional accommodation. On appeal by the tenant, the Appellate Authority confirmed the order of eviction of the Rent Controller with regard to one more ground, viz. requirement for additional accommodation. 3. In this revision petition, learned Counsel for the petitioner contends that the evidence on record does not make out the case of using the building for a purpose other than that for which it was leased out and thereby causing nuisance. It is also urged that the respondents have not proved the bona fide requirement for own occupation. 4. On the question of different user of the building, the plea in the petition for eviction is as follows: The respondent having taken the building for residential purpose is using the building for different purpose. The respondent is running a gambling den in the front portion of the building. The respondent used to collect money for each round from those who play cards known as table money. By permitting people to play cards the respondent is unjustly making profit, but at the same time creating nuisance to the neighbours. By permitting playing cards the respondent is creating a bad reputation for the building among the public. In the evidence, P.W.1 the husband of the first respondent herein, stated that the petitioner herein having taken the building for residential purposes was using the front portion of the same for playing cards with stakes. He deposes that cards are played throughout day and night and it causes nuisance to others. In the cross-examination, the only suggestion made to P.W.1 is that his version that the petitioner herein is playing cards is not true. That suggestion was denied by P.W.1. He deposes that cards are played throughout day and night and it causes nuisance to others. In the cross-examination, the only suggestion made to P.W.1 is that his version that the petitioner herein is playing cards is not true. That suggestion was denied by P.W.1. It was also asked whether a police complaint was given by him. He stated that he had not given any such complaint. 5. A Commissioner was appointed by the Rent Controller soon after the filing of the petition. He inspected the premises after giving notice to the parties. His report reveals crucial facts which prove that the building is being used by the petitioner for playing cards. The report of the Commissioner gives an impression that the petitioner's family is not residing there and that almost all the portions of the building are being used for playing cards and consuming liquor. The relevant portion of the report of the Commissioner reads thus: (4) During my visit, there were eight persons playing cards in the P1' pial portion including the respondent. I found smoked cigarette pieces, and match sticks spread all over the 'P1' pial portion. On the western wall in this portion there are two madam which are occupied by bundles of playing cards during my visit. (5) I found wooden dust, old cycle, old chair and waste things in the 'H1' and 'H2' hall portions. I also found smoked cigarette pieces and some playing cards in the hall portions. (6) ... (7) In the hall which is marked as 'H4' I found waste things are stores. In that portion I found five empty brandy quarter bottles during my visit. In the hall 'H5', I found fire woods and cooking utensils. In the terraced portion in the hall 'H4' tholakattais are found damaged. (8) ... (9) On the east of the 'EFGH' Calicut tiled portion is a vacant site. There is a bathroom in that vacant site. I found well grown grasses in the vacant site. In that vacant site portion the walls are found damaged. (10) ... (11) On the east of 'IJKL' tiled portion is a vacant site compound by walls and padals as shown in the rough plan. A well and a toilet are as in the plan. The appearance of the portions on the east of room 'R4' and hall 'H5' shows as an unused one. (10) ... (11) On the east of 'IJKL' tiled portion is a vacant site compound by walls and padals as shown in the rough plan. A well and a toilet are as in the plan. The appearance of the portions on the east of room 'R4' and hall 'H5' shows as an unused one. The Commissioner has been examined as P.W.2. He referred to his report in the Chief-examination and marked the same as Ex.C-1. There was no cross-examination by the petitioner when the Commissioner was in the witness box with reference to the various matters referred to by him in his report. In cross-examination, it is stated that the Commissioner visited the premises only once and that he was not aware as to which game was being played in cards when he went there. He stated what he did not see whether they played cards with money. He also stated that one of the eight persons seen by him among the persons who were playing cards was a lawyer of Erode. 6. R.W.2 is a person who resides in the adjacent premises. Though he was examined by the petitioner to support his case, his evidence goes to show that the case of the petitioner is not true. Though in the Chief-Examination, he states that cards were played in the petition premises, and they were being played only on special occasions, he stated in the cross-examination that whenever there was festival and other occasions, that petitioner would conduct plays of cards. The Tamil words used by him. He admitted that there was no special occasion in September 1985 at Kodumudi. The Commissioner visited the premises on 6-9-1985. The evidence of R.W.2 to the effect that there was no special occasion in September, 1985, goes to show that playing cards in the premises is a regular feature and not confined to special occasions or festivals. 7. The evidence of R.W.1 does not improve the situation. In the cross-examination, he stated that there was a police complaint against the playing of cards in his house and the Superintendent of Police came and enquired him. According to his evidence, the Police Officer advised him to play cards inside the house and not on the pial. He added that the police Officer knew that the cards were not played for stakes. 8. According to his evidence, the Police Officer advised him to play cards inside the house and not on the pial. He added that the police Officer knew that the cards were not played for stakes. 8. The cumulative effect of the entire evidence on record on this aspect of the matter is that the petitioner had been using the premises for playing cards and consuming liquor. This is strengthened by the evidence of R.W.2 that the petitioner had been living in Erode for two or three months prior to giving evidence, leaving his premises locked. In fact, when the petitioner was asked about his shifting to Erode, he stated that he was employed in Erode at that time, but he was going from the petition premises to his place of work. In view of the specific evidence of R.W.2, the version given by the petitioner cannot by accepted. Taking the fact that the petitioner is not in occupation of the house for the past few months, along with the findings of the Commissioner, it is clear that the petition building is being used for a purpose other than that for which it was let out. The petitioner is clearly guilty of using the building for a different purpose and he is liable to be evicted under Section 10(2)(ii)(b) of the Act. The orders of the Authorities below are, therefore, confirmed on this ground. 9. The causing of nuisance is consequential to the user of the building for playing cards and consuming liquour. As it is now found that the petitioner is guilty of using the premises for playing cards and consuming liquor, the fact that he is causing nuisance to the occupiers of other buildings in the neighbourhood gets automatically established. Consequently, the orders of the Authorities under Section 10(2)(v) have also to be sustained. 10. Learned Counsel for the petitioner places reliance on the decision of the Supreme Court in Sachindra Nath Shah v. Santosh Kumar Bhattacharya. In that case, there was no plea that the building was being used for a different purpose; nor was there any issue about the same. That was urged as a ground for eviction for the first time only in the High Court in second appeal. It was not raised either in the trial Court or in the appellate Court. In that case, there was no plea that the building was being used for a different purpose; nor was there any issue about the same. That was urged as a ground for eviction for the first time only in the High Court in second appeal. It was not raised either in the trial Court or in the appellate Court. The Supreme Court held that it was clearly impermissible and even if such a plea were allowed to be raised for the first time in second appeal, it was found that the plea was not well-founded. The decision turns on the facts of that case and it will not help the petitioner in the present case. 11. Learned Counsel draws my attention to the decision of Palaniswamy, J. in Radhakrishna School v. Shanmugha Mudaliar, 82 L.W. 280. In that case, the landlord sought eviction on the ground that the tenanted premises was being put to a different user. It was found that the Manager of the School was occupying a portion of the premises. The learned Rent Controller found that the letting was for both residential and non-residential purposes and, consequently, he dismissed the petition for eviction. In the appeal, the Appellate Authority differed and held that the building was let out for non-residential purpose alone. The Appellate Authority did not record a finding as to the date from which the Manager of the School began to reside in the premises. As he held that the original letting was for non-residential purpose, he ordered eviction on the ground of different user. The learned Judge, in revision petition, set aside the order of the Appellate Authority and remanded the matter to the Rent Controller. The learned Judge found that the landlord had not given the date from which the premises was being used for residential purposes. Under Section 10(2)(ii)(b), the tenant will be liable for eviction if, after 23-10-1945, he has used the building for a purpose other than that for which it was let out without written consent and hence the date would certainly be essential. Therefore, the learned Judge pointed out that without giving a finding with regard to the date, the order of eviction could not be passed. Therefore, the learned Judge pointed out that without giving a finding with regard to the date, the order of eviction could not be passed. It was also observed by the learned Judge that it was necessary for the Court to find out the extent of the portion of the building in the occupation of the Manager for his residence in order to determine whether by the mere user of a portion for his residential use, the substantial character of the letting had been altered. As the Authorities below did not bestow their attention on that aspect of the case, the matter was remitted to the Rent Controller by the learned Judge. That decision has no applicability to the facts of the present case. 12. I have found on facts that the petitioner has used the entire building for a purpose other than that for which it was let out. There is no dispute in the present case that the user has taken place after 23-10-1945. The Commissioner's report shows that on 6-9-1985, the building was used for playing cards. 13. Learned Counsel also placed reliance on Ratnam Naicker v. Mani Naicker (1955)1 M.L.J. (N.R.C.) 2 wherein Ramaswami Gounder, J. held that merely because the tenant played cards for stake in the building in his occupation on a solitary occasion and was convicted under the City Police Act, it was not possible to say that the building had been converted into a gambling den, and that a single act of gambling will not constitute a different purpose. The learned Judge has observed that the purpose of tenancy must be given up and the premises put to an altogether different purpose. On the facts of the instant case, I have already pointed out that the evidence of R.W.2 and the Commissioner's report make out that the premises was used for playing cards and consuming liquor. Finding of fact having been arrived at in the present case, it would exclude the applicability of the aforesaid decision of Ramaswami Gounder, J. 14. Learned Counsel for petitioner strenuously contended that the bona fide requirement of the respondents has not been made out in the evidence. He admits that there is sufficient pleading but according to him there is no evidence to support the pleading. He referred to the decision of the Supreme Court in Satyanarayana v. Raghavaiah. Learned Counsel for petitioner strenuously contended that the bona fide requirement of the respondents has not been made out in the evidence. He admits that there is sufficient pleading but according to him there is no evidence to support the pleading. He referred to the decision of the Supreme Court in Satyanarayana v. Raghavaiah. In that case, there was no pleading but there was sufficient evidence on record and the Courts below had ordered eviction. Objection was raised in the Supreme Court that the evidence should not be looked into as there was no pleading and the Supreme Court observed as follows: 6. There can be no doubt that under the law of pleadings facts mentioned in Sub-clause (iii) are to be pleaded in the petition and thereafter proved at the trial for the purpose of an order of eviction against the tenant. In a decision of this Court in Hasmat Rai v. Raghunath Prasad, it has been observed by Desai, J. that in order to obtain an order of eviction of a tenant under Section 12(1)(m) of Madhya Pradesh Accommodation Control Act, 1961, the landlord has to plead and establish (i) that he bona fide requires the accommodation let to the tenant for non-residential purposes for the purposes of continuing or starting his business; and (ii) that he has no other reasonable suitable non-residential accommodation of his own in his occupation in the city or the town concerned. Further, it has been observed that any amount of proof offered without appropriate pleading is generally of no relevance, we respectfully agree with the above statement of law and reiterate the same. We are, however, not inclined to interfere with the impugned order of eviction in the instant case for the reasons stated hereinafter. 7. The point was not taken in any of the Courts below, nor has it been taken in the special leave petition. For the first time, it has been raised in the argument before us. Mr. P.P. Rao, learned Counsel appearing on behalf of the appellant, has produced before us a copy of the memorandum of Civil Revision Petition that was filed in the High Court. We do not, however, find that the point has been specifically taken in the grounds of revision. It is not disputed that the point was not also argued before the High Court. We do not, however, find that the point has been specifically taken in the grounds of revision. It is not disputed that the point was not also argued before the High Court. However, the Supreme Court refused to interfere with the order of eviction passed by the Courts below as it found that there was sufficient material on record to prove the bona fide requirement of the landlord. That decision of the Supreme Court will not help the petitioner in the present case as admittedly in the present case there is sufficient pleading on the part of the respondents. 15. The only question is whether the proof let in by the respondents is sufficient to make but the bona fide requirement. 16. Learned Counsel for the petitioner points out that, in the petition for eviction, the respondents claimed that they purchased the building for the specific purpose of their own occupation with their respective members of the family and that they were not having any other residential building within Kodumudi town. In the counter statement, the petitioner contended that the allegations in the petition were not proved and that the respondents herein were occupying their own premises. According to him, the first respondent was occupying No. 11 Bazaar Street belonging to her husband and the second respondent was occupying Door No. 37, Karur Road, Kodumudi. In the evidence, P.W.1, the husband 6f the first respondent, stated in chief-examination that himself and his brother purchased the petition premises and informed the tenant about the purchase. He stated that there is no other building owned by him and that the petition premised is required for own occupation. According to learned Counsel for the petitioner, the evidence given by P.W.1 is not in accord with the pleadings in the petition for eviction. It is urged by learned Counsel that while the pleading refers to the purchase of building by the respondents herein, the evidence is to the effect that the purchase is by their husbands and their husbands do not own any other building. In the cross-examination, P.W.1 had stated that Door No. 11 belongs to his father and that it was allotted to him in a partition. The partition deed is produced and marked as ExA-6, under which Door No. 11 Bazaar Street is allotted to the father of P.W.1 and his brother. In the cross-examination, P.W.1 had stated that Door No. 11 belongs to his father and that it was allotted to him in a partition. The partition deed is produced and marked as ExA-6, under which Door No. 11 Bazaar Street is allotted to the father of P.W.1 and his brother. Under the same document, one portion of Door No. 37 Karur Road is allotted to P.W.1 and another portion is allotted to his brother. The document describes door No. 37, Karur Road as a shop. The evidence makes out that the husbands of the respondents do not own any building of their own. There is absolutely no suggestion by the petitioner herein that the respondents own other buildings. It is the case of P.W.1 that the purchase made in the names of the respondents was really for himself and his brother. No doubt, the case of purchase by respondents has not been specifically put forward in the petition, but that would not mean that there is no bona fide in the requirement of the respondents herein. There is no dispute that the respondents are living with their husbands. In the absence of any suggestion that the respondents own other buildings than the petition premises, it cannot be said that the respondents are not eligible to file a petition for eviction under Section 10(3)(a)(i). 17. When the petitioner was in the witness box, a suggestion was made to him in cross-examination that the first respondent's family consisted of four members. The petitioner replied that he did not know about the number of members in their families. However, he said that the father-in-law and mother-in-law of the respondents were alive. He also stated that the husbands of the respondents had four sisters and all of them had been married. Though the petitioner is willing to give some details about the members of the families of the respondents, he is not willing to admit the number of members in those families. 18. Learned Counsel for the petitioner urged that unless the respondents make out in the evidence that there is a necessity for them to shift from Door No. 11 Bazaar Street, which belonged to their father-in-law, it cannot be said that they have made out their bona fide requirement. 18. Learned Counsel for the petitioner urged that unless the respondents make out in the evidence that there is a necessity for them to shift from Door No. 11 Bazaar Street, which belonged to their father-in-law, it cannot be said that they have made out their bona fide requirement. It is his contention that when the owners of the petition premises are not living in rented premises, they should establish before the Court that they have the necessity to vacate the premises, which they are occupying at present, and that they are in need of the petition premises. According to learned Counsel, no such plea has been raised by the respondents and no proof has been let in by them. In my view, it is not necessary for the respondents to go to that extent to claim an order of eviction under Section 10(3)(a)(i). 19. A Division Bench of this Court, while considering the question of bona fide requirement, in Sampathu Chetty v. S.V. Bapulal (1967)1 M.L.J. 289 , observed that, 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. The Bench further observed that the expression 'bona fide' will have to be understood in the context, but subject to that, it means in cases under Section 10(3)(a), the landlord honestly desires to occupy the premises from which eviction is sought and his claim is not a device to serve an oblique purpose. In the present case, there is no suggestion that the respondents are motivated by different purpose, nor is there any evidence to prove the same. 20. Learned Counsel for the petitioner places reliance on the decision of the Supreme Court in M.M. Quasim v. Manohar Lal wherein it was observed: ... When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison decree of the Rent Act. Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord's claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court. It would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant. This approach would put a premium on the landlord's greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate. To curb this very tendency the Rent Act was enacted and, therefore, it becomes the duty of the Court administering the Rent Act to bear in mind the object and intendment of the legislature in enacting the same. In the case before the Supreme Court, it was found that the landlord had another building of his own vacant and available to him. It was in that context, the Supreme Court held that the choice of the landlord with regard to the premises which he should occupy was not an unfettered one and that it should be governed by legal principles. In the present case, there is no doubt that the respondents do not own any building other than the petition premises. Hence, the observations of the Supreme Court made in the above cited case, will not apply. 21. In the present case, there is no doubt that the respondents do not own any building other than the petition premises. Hence, the observations of the Supreme Court made in the above cited case, will not apply. 21. Learned Counsel drew my attention to the discussion on the question of bona fide requirement made by the Supreme Court in Hameedia Hardware Stores v. B. Mohan Lal Sowcar. ... In the context of Rent Control law which is enacted for the purpose of giving protection to tenants against unreasonable evictions and for the purpose of making equitable distribution of buildings amongst persons who are in need of them in order to prove that his claim is bona fide a landlord should establish that he deserves to be put in possession of the premises which is in the occupation of a tenant. Any decision on the question whether a landlord deserves to be put in possession of a premises in the occupation of a tenant should naturally depend upon the bona fides of the landlord's requirement or need. The word 'claim' in Clause (e) of Section 10(3) of the Act should, therefore, be construed as 'the requirement' of the landlord or his deservedness. 'Deserve' means 'to have a rightful claim' or a 'just claim'. Since Clause (e) of Section 10(3) of the Act is also applicable to a petition filed under Sub-clause (iii) of Section 10(3)(a) of the Act it becomes necessary to examine whether the requirement of the landlord is bona fide. Otherwise a landlord will be able to evict a tenant to satisfy his whim by merely proving the ingredients mentioned in Section 10(3)(a)(iii) of the Act. That was a case under Section 10(3)(a)(iii) of the Act. This Court was consistently taking the view that in a petition filed under Section 10(3)(a)(iii), there was no necessity for the landlord to prove bona fide requirement, and that what was required was to prove the bona fide of the claim. In other words, the view of this Court was that (i) the petitioner should prove that the building is a non-residential one, (ii) he is carrying on some business and (iii) he is not occupying for purposes of his business a building of his own. In other words, the view of this Court was that (i) the petitioner should prove that the building is a non-residential one, (ii) he is carrying on some business and (iii) he is not occupying for purposes of his business a building of his own. On the proof of the aforesaid three aspects of the matter, it was held by this Court that the landlord would be entitled to an order of eviction. That view was over-ruled by the Supreme Court in Hameedia Hardware Stores v. B. Mohan Lal Sowcar. The Supreme Court pointed out that, even in a petition under Section 10(3)(a)(iii), it is necessary for a landlord to prove the bona fides of his requirement. It also pointed out that Section 10(3)(a) is common to all sub-sections of Section 10(3)(a) and, consequently, the landlord should prove the bona fide requirement. It was in that context, the Supreme Court made the aforesaid observations. Ultimately, the Supreme Court remanded the matter to this Court for consideration of the question of bona fide requirement. That case will not help the petitioner herein. 22. Learned Counsel for the petitioner relies on the decision of Nainar Sundaram, J. In Thilagaraj Match Works v. Sundaresan (1985)1 M.L.J. 106 , where in at paragraph 5, is observed as under: ...The very ingredient of Section 10(3)(a) of the Act requires that the question of bona fide has got to be tested and it has got a due place while adjudicating a petition for eviction by the landlord under the concerned provisions. It is not the desire of the landlord, but there must be an element of need for the landlord before it could be stated that he requires the premises for his own occupation. The features referred to above, cannot be eschewed as irrelevant, for after all bona fide will have to be proved in an ordinary manner like any other fact in issue, and the entire gamut of facts and circumstances has to be adverted to on this question. There was no consideration of the question of bona fide in that case. Consequently, the learned Judge set aside the orders of the Appellate Authority and remanded the matter for fresh consideration. It was pointed out in that case that bona fide is primarily a subjective conclusion and hence it is to be tested on the facts of each case. There was no consideration of the question of bona fide in that case. Consequently, the learned Judge set aside the orders of the Appellate Authority and remanded the matter for fresh consideration. It was pointed out in that case that bona fide is primarily a subjective conclusion and hence it is to be tested on the facts of each case. In the present case, I have no hesitation to hold that the requirement of the respondents is bona fide. 23. Learned Counsel contends that the building was purchased by the respondents in 1982 and they filed the petition for eviction only in 1985, more than three years after the purchase. He points out that the first notice issued by the respondents was on 23.8.1985 and the petition for eviction was filed on 30-8-1985. P.W.I has given evidence that, ever since the purchase of the building, he had been requesting the tenant to vacate the premises as it was required for the occupation of the respondents. He also stated that the petitioner tenant was prolonging the matter by stating that he would have to give his daughter in marriage and he requires at least another six months. Thus, according to the evidence of P.W.1, the petitioner was protracting the issue. The evidence of R.W.1 in a way supports the version of P.W.1. He admits in his evidence that he did ask for at least six months time to vacate the premises in order to perform his daughter's marriage. Hence, the respondents are not in fault for filing the petition for eviction after three years of the date of purchase. However, that will not negative the bona fides of the requirement. The question is when the owner of the building seeks eviction of the tenant, whether his requirement for own occupation on the date of filing the petition, is bona fide. It does not matter when the owner of the building purchased the building. The fact that he was kind enough to allow the tenant to continue in occupation for a long period of three years, will not mean that the requirement is not bona fide. 24. Learned Counsel for the respondents drew my attention to the decision of Ismail, J. (as he then was) in Mohammed Makki v. Abdul Azeez 1978 T.L.N.J.312, wherein it was held that the words "his own" occurring in Section 10(3)(a)(i) would mean "exclusively his own". 24. Learned Counsel for the respondents drew my attention to the decision of Ismail, J. (as he then was) in Mohammed Makki v. Abdul Azeez 1978 T.L.N.J.312, wherein it was held that the words "his own" occurring in Section 10(3)(a)(i) would mean "exclusively his own". Learned Counsel submits that the fact that the respondents are jointly living in the premises belonging to their father-in-law would not disentitle them to file a petition under Section 10(3)(i). 25. There is no dispute about the eligibility of the respondents to file a petition for eviction. The only contention raised by Learned Counsel for the petitioner is that the requirement is not bona fide. I have already dealt with the matter in detail and found that the requirement is bona fide. Consequently, the finding of the Authorities below has to be confirmed. The civil revision petition is dismissed with costs.