Research › Browse › Judgment

Madras High Court · body

1988 DIGILAW 49 (MAD)

M. Shanmugam v. Kuppammal

1988-01-25

SIVASUBRAMANIAM

body1988
ORDER Sivasubramaniam, J. 1. The unsuccessful tenant in R.C.A. No. 3 of 1984 on the file of the appellate authority (Principal Subordinate Judge), Salem is the petitioner in this revision petition and the landlady is the respondent. 2. The respondent/landlady filed the petition in R.C.O.P. No. 109 of 1980 on the file of the learned Rent Controller (District Munsir), Salem for eviction of the petitioner/tenant from the petition premises on the ground that he is occupying a portion of the petition premises bearing Door No. 6-A, that the portion in the possession of the respondent is Door Nos.6-B, that the said portion is required by her as an additional accommodation and that the portion which is already in her possession is not sufficient for accommodating her members of the family. 3. The tenant resisted the application contending that the requirement of the landlady is not bona fide that the buildings in Door Nos.6-A and 6-B are separate buildings divided by a wall and that Door No. 6-B is sufficient for the landlady's residence. 4. The learned Rent Controller, on a consideration of the evidence let in by the parties, came to the conclusion that the two buildings are separate and independent and that the requirement of the landlady is not bona fide. Consequently, he dismissed the eviction petition. As against the said order, the landlady preferred the appeal in R.C.A. No. 3 of 1984 and the appellate authority took a different view of the matter and held that the said two buildings form only one unit structurally and that the requirement of the landlady is bona fide. Consequently, he allowed the appeal and passed an order of eviction against the tenant. Aggrieved against the said judgment, the tenant has preferred this revision petition. 5. Learned Counsel for the petitioner urged that the petition building is a separate house by itself and is not connected by any door-way across the party-wall and, therefore, the landlady is not entitled to invoke the provisions of Section 10(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act which shall hereinafter be referred to as the Act. According to him, the two buildings have got separate entrance having no inter-connections whatever and that the petition buildings bear separate door numbers. According to him, the two buildings have got separate entrance having no inter-connections whatever and that the petition buildings bear separate door numbers. In support of his contentions, he relied on the decision of this Court reported in Ganapathi Pandian v. Sheick Mohamed and Bros (1957) 2 M.LJ. (NRC) 45 wherein it was held that in cases where the portion of a building let out to a tenant is a separate self-contained portion with separate independent entrance, in a separate block or plot having nothing to do with the rest of the building, the mere fact that it forms part of the same 'structure' in the engineering sense will not entitle a landlord to take advantage of Section 7(3) (c) of the Act. However, in the same judgment, it was explained that where the portion of a building occupied by a tenant lie cheek by jowl with other portions in the occupation of the landlord, the mere fact that such portions are capable of being locked separately will not disentitle a landlord to the benefit of Section 7(3) of the Act merely because they are let separately. 6. T. Somasundaram, learned Counsel appearing for the respondent/landlady pointed out that the said ruling has been overruled in a subsequent decision of this Court in Mohammed Jaffer v. Palaniappa Chettiar. Even-though the earlier case has not been specifically overruled by the latter decision, the Bench, which decided the latter case, considered the earlier decision and came to the following conclusion: In our opinion there is no warrant to deprive the words in Section 7(3)(c) of the Act of their ordinary and natural meaning by engrafting the artificial definition of the word "building" in Section 2 upon them. The definition itself is restricted in its operation only when there is nothing repugnant in the subject or context. We cannot assume that "part of the building" which means physically and structurally a limb or portion, ceases to possess that character, because of the definition. We feel convinced that such an interpretation of the section would result in depriving it of any useful purpose. Again reference was made to a decision of the Supreme Court in Mohd. We cannot assume that "part of the building" which means physically and structurally a limb or portion, ceases to possess that character, because of the definition. We feel convinced that such an interpretation of the section would result in depriving it of any useful purpose. Again reference was made to a decision of the Supreme Court in Mohd. Shaft v. VII Additional District and Sessions Judge where the Supreme Court, while interpreting the Explanation found in Section 21 of the U.P. Urban Buildings Act, held that where a superstructure consists of two or more tenements and each tenement is an independent Unit distinct and separate from the other, the explanation would be of no application because each tenement would be a unit and not a part of a unit and it is only where there is a unit of accommodation of which a part is under the tenancy and the remaining part is in the occupation of the landlord that the explanation would be attracted. It was further observed that the legislature was clear that where there is a single unit of accommodation of which a part has been let out to a tenant, the landlord who is in occupation of the remaining part, should be entitled to recover possession of the part let out to the tenant. Therefore, all these decisions proceed on the basis that the Court has to find out as to whether the two portions form one unit or each one is a separate building by itself. 7. The evidence in this case clearly shows that the petition premises as well as the portion occupied by the landlady are parts of the same building structurally and they are divided by a party-wall. Therefore, merely because they bear separate door numbers or assessed separately is not a ground to hold that they are two separate buildings in its strict sense of the term. They form one unit of the building under the same roof and in such a case, the scope of Section 10(3)(c) of the Act cannot be narrowed down by adopting such a technical interpretation. The nature of the building can be tested by the fact whether both the portions can be used as one unit to meet the needs of the landlady. The nature of the building can be tested by the fact whether both the portions can be used as one unit to meet the needs of the landlady. Considering these aspects, the appellate authority has rightly come to the conclusion that it is only a part of the building and, therefore, Section 10(3)(c) of the Act is attracted. I do not find any infirmity in the said findings. 8. Learned Counsel for the petitioner further contended that the landlady has not established bona fides in her requirement. According to the landlady her family consists of 6 members including the son-in-law and since the premises under her occupation is insufficient, she requires the petition premises as an additional accommodation. It is in evidence that the respondent has two daughters and one son and that one daughter has been married who is also residing with her. It is her further case that the married daughter has given birth to a child and the portion in her occupation is not sufficient for her. The son was undergoing training at Madras and he was expected to be back in 1982 after completing the course. According to the tenant, the married daughter and her husband are living in Kallakurichi and not with the landlady. During the pendency of the appeal the landlady filed a petition in I.A. No. 63 of 1986 to receive additional documents to show that her son-in-law also came and stayed with her and that he subsequently died. She filed Ex.A-2 which is communication from the Managing Director, Anna Transport Corporation, Salem dated 24-2-1986 and it shows that her son-in-law is employed in the said Corporation at Salem. Exs.A-3 and A-4 have been filed to show that her son-in-law died on 7-3-1986. However, these documents were not relied on, on the ground that they we not formally proved. What-ever it might be, the fact that the married daughter became a widow is not in dispute and, therefore, the requirement of the landlady to provide accommodation for her widowed daughter along with her, cannot be said to be not bona fide. The requirement of a landlord for personal occupation or as additional accommodation depends upon the various circumstances and there cannot be a uniform rule. It is also not possible to weigh such requirement in golden scale. The requirement of a landlord for personal occupation or as additional accommodation depends upon the various circumstances and there cannot be a uniform rule. It is also not possible to weigh such requirement in golden scale. What is requirement to be considered is, whether the requirement of the landlady is essential to meet her needs or the plea were projected with certain oblique motive. In this case, I do not find any grounds to hold that the requirement of the landlady lacks bona fides and the appellate authority has come to the right conclusion on this aspect. 9. The last submission that was made by the learned Counsel for the petitioner is that the appellate authority has not considered the relative hardship of the parties, while ordering eviction against the tenant. It was submitted that in the absence of such a finding, the order of the appellate authority is vitiated. These submissions have to be sustained in view of the positive provisions contained in Section 10(3)(c) of the Act. The Controller or the appellate authority, as the case may be should firstly be satisfied that the claim of the landlord is bona fide and if he is so satisfied, he shall make an order directing the tenant to put the landlord in possession of the part of the building. In so far as the petition Under Section 10(3)(c) of the Act is concerned, the Controller or the appellate authority shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting an order of eviction will outweigh the advantage to the landlord as per the provision contained in the proviso to Sub-section (3)(c) of the Act. Therefore, it becomes necessary for the authorities to apply their mind on that aspect and give a finding. Though it is difficult to weigh the advantage and disadvantage between the parties, it has to be done in view of the existing provision in the statute. There must be something on record to show that the authorities have applied their mind to that aspect, and in the absence of that the enquiry cannot be said to be complete in support of the said contentions. There must be something on record to show that the authorities have applied their mind to that aspect, and in the absence of that the enquiry cannot be said to be complete in support of the said contentions. Reliance was placed on a decision of this Court in Loganatha Naicker v. Balasundaram Mudaliar (1974) 2 M.L.J. 256 wherein it was held as follows: Therefore, it becomes absolutely imperative for the authorities in case arising under sub-Section 3(1)(c) of the Act, to give a specific finding whether the hardship which the tenant is likely to suffer would outweigh the advantage to the landlord or vice versa. Unless this aspect is noticed and adjudged upon by the statutory authorities there is no complete enquiry as the statue contemplates in regard to the petitions arising Under Section 10(3)(c). This question was considered in Annakili Animal v. Hussain and Hassan and a similar view was expressed by Ratnam J. In Navamani v. Rangaswami Achari and Anr. 1977 T.L.N.J. 544, Natarajan, J., as he then was, held that it is a statutory requirement and has, therefore, to be performed by the Rent Controller and the Appellate Authority without evasion or failure. It follows that a landlord's petition for additional accommodation Under Section 10(3)(c) of the Act cannot be allowed without the Authority deciding the question whether the eviction of the tenant, if ordered, would result in greater hardship to the tenant than in conferring advantage to the landlord. 10. In this case, we find that the tenant has specifically pleaded in his counter statement that the hardship that will be caused to him will outweigh the possible convenience, if any, that may accrue to the landlady, in case he is ordered to be evicted. The appellate authority has not considered this question anywhere and, therefore, necessarily this revision petition has to be allowed on the limited ground that there must also be a finding on this aspect before an order of eviction can be passed in favour of the landlady. For this limited purpose, the case is remitted to the appellate authority for determination of the question whether an order of eviction would cause greater hardship to the tenant than concerning the advantage to the landlord. This revision petition is accordingly allowed and the judgment of the appellate authority is set aside. No costs. For this limited purpose, the case is remitted to the appellate authority for determination of the question whether an order of eviction would cause greater hardship to the tenant than concerning the advantage to the landlord. This revision petition is accordingly allowed and the judgment of the appellate authority is set aside. No costs. The appellate authority is directed to dispose of the matter within two months from the date of the receipt of a copy of this order.