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1996 DIGILAW 610 (MAD)

S. Devan v. N. Palaniappan (Landlord)

1996-06-20

ARUNA JAGADEESAN

body1996
Judgment :- 1. The respondent is the landlord. He has filed R.C.O.P. Nos. 5 to 7 of 1993 on the file of the Rent Controller (District Munsif), Tambaram for eviction of the tenants on the ground that the building is required for owners occupation, i.e., the building is required for the business of the respondents sons. So far as the R.C.O.P. No. 6/93 is concerned, the additional ground for eviction is that the tenant had sub-leased the premises. 2. The petitioners herein filed counter contending that the petition under Section 10(3)(a)(iii) for owners occupation is not maintainable and only petition under Section 10(3)(c) for additional accommodation is maintainable. Further, they contended that there is no bona fide in the requirement of the landlord for owners occupation since the respondents sons are not carrying on any business. The petitions had been filed due to the strained relationship, as the petitioners had filed certain criminal cases against the respondent. 3. The Rent Controller had carefully considered all the points raised by the tenants and found that the requirement of the landlord is bona fide and the petition under Section 10(3)(a)(iii) is maintainable and ultimately allowed all the R.C.O.Ps., by order dated 29.6.1994. So far as R.C.O.P. No. 6/93 is concerned, the additional ground of sub-lease had been found against the landlord. 4. The petitioners herein filed appeal in R.C.A. Nos. 24 to 26 of 1994 before the Appellate Authority (Sub Judge), Poonamallee. The Appellate Authority also concurred with the finding of the Rent Controller and dismissed the appeals by his judgment dated 27.10.1995. The Petitioners have filed the present revisions against the eviction ordered by both the authorities. 5. The learned counsel for the petitioners contended that both the authorities below have totally failed to consider the contradictions in the evidence and also the contradiction with regard to the requirement stated in the notice and in the R.C.O.Ps. He further contended that the petitioners are tenants in respect of three shops in the building which is having five shops lying contiguously in a row. If that be so, it should be considered as one building as oneness of the building is to be taken into consideration and not oneness of the ownership. He further contended that the Appellate Authority has totally failed to consider the enmity pleaded by the petitioners in filing the petitions by the landlord. 6. If that be so, it should be considered as one building as oneness of the building is to be taken into consideration and not oneness of the ownership. He further contended that the Appellate Authority has totally failed to consider the enmity pleaded by the petitioners in filing the petitions by the landlord. 6. I have carefully considered the arguments of the counsel for the petitioners. A perusal of the judgment of the Appellate Authority would clearly reveal that these points have been raised before that forum. The Appellate Authority had elaborately discussed the matter and also referred to the judgments cited on behalf of the petitioners by their counsel and found that the petition under Sec. 10(3)(a)(iii) is maintainable and there is no need for the respondent to file an application under Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as ‘the Act’). The counsel for the petitioners was not in a position to point out any error in the finding of the Appellate Authority on this issue except that once again he cited the same authorities before me. I do not find any error in the finding of both the authorities below with regard to the maintainability of the R.C.O.Ps. under Section 10(3)(a)(iii) of the Act. There is no need to discuss elaborately the judgments referred to by the counsel for the petitioners, since the judgments have been considered by the Appellate Authority. But any how I refer to two judgments in order to explain the position. The Counsel referred to the Judgment reported in Childrens Choice v. Adiseshiah (1982 I M.L.J. 411). It is the case the landlord filed eviction petition to evict the tenants in respect of two shops wherein two different door numbers, though they are in the same building. The petition was filed under Section 10 (3)(c) of the Act. The contention raised therein was that the petition filed under Section 10(3)(c) of the Act is not maintainable. The learned Judge has held as follows:— “It is also common ground that the entire building does not belong to the respondents-landlords, since shops 3 and 4 were admittedly sold to third parties who are in occupation of the same. The contention raised therein was that the petition filed under Section 10(3)(c) of the Act is not maintainable. The learned Judge has held as follows:— “It is also common ground that the entire building does not belong to the respondents-landlords, since shops 3 and 4 were admittedly sold to third parties who are in occupation of the same. Both the Courts below found that since the shops in question are also situated in the same building, the landlords are entitled to file a petition under Section 10(3)(c) for additional accommodation. For this proposition reliance was placed by the landlords on the decision reported in Veerappa Naidu v. Gopalan (1961) 1 MLJ 223 ). Therefore, the mere fact that the shops are separately numbered by the Corporation for purposes of assessment is not a bar for the maintainability of the application of the landlords under Section 10(3)(c). It cannot be said that the shops 3 and 6 viz., the premises in question constitute a separate building disentitling the landlord to apply under Section 10(3)(c). I agree with the findings of the lower Courts on the question of maintainability.” The Court has held that there is no bar in filing the application under Section 10(3)(c). It has not been held that the petition is maintainable only under Section 10(3)(c). The other case which is cited by the counsel is reported in Gangaram v. N. Shankar Reddy (1998)4 SCC 648). In that case, the landlord filed an application for eviction under Section 10(3)(c) of the Act. The Rent Controller dismissed the petition on the ground that the landlord can seek for eviction only under Section 10(3) (a)(iii) of the Act. This order was set aside by the Appellate Authority and the same was confirmed by the High Court. Before the Apex Court the question was not relating to the applicability of Section 10 (3)(a)(iii) or Section 10(3)(c) of the Act. The Supreme Court itself has pointed out the controversy as follows:— “In this case, the controversy centres around the question whether a landlord can invoke Section 10 (3)(c) of the Act to seek the eviction of a tenant who is not occupying a portion of the building occupied by the landlord himself but is occupying another building belonging to the landlord.” The Supreme Court has further held as follows:— “On a consideration of the matter, we find that the contention of Mr. Nambiar, which has found acceptance with the appellate court and the High Court is not at all a tenable one. What Section 10 (3)(c) envisages is the oneness of the building and not the oneness of ownership of two different buildings, one occupied by the landlord and the other by the tenant. The significant words used in Section 10(3)(c) are “the landlord who is occupying only a part of a building” and “any tenant occupying the whole or any portion of the remaining part of the building.” Surely no one can say that two adjoining buildings bearing different door numbers, one occupied by the landlord, and the other by the tenant would make them one and the same building if they are owned by one person, and separate buildings if they are owned by two different persons. A practical test which can be applied to find out if two adjoining buildings form part of the same building or two different buildings would be to see whether one of the two buildings can be sold by the landlord and the purchaser inducted into possession of the premises sold without the landlords possession and enjoyment of the premises in his occupation being affected.” If this principle is to be applied in this case it is not the case of the petitioners that each shop bearing separate door number cannot be sold by the landlord independently and the purchaser cannot be put in possession without the landlords possession and enjoyment being affected. When each shop is having separate door number and each had been treated as a separate unit, it is always open to the landlord to sell each shop as a separate unit and hand over possession to the purchaser for his immediate occupation and enjoyment without affecting the landlords occupation of another shop bearing separate door number. Hence even on the basis of this judgment, the petitioners contention that the landlord has to file the petition for eviction only under Section 10(3)(c) of the said Act, cannot be accepted. 7. The requirement of the landlord under-Section 10(3)(a)(iii) of the Act can be made only if the landlord is carrying on the business. There is no dispute that the joint family is carrying on business and now the father wants to settle his sons separately by dividing the joint family business. 7. The requirement of the landlord under-Section 10(3)(a)(iii) of the Act can be made only if the landlord is carrying on the business. There is no dispute that the joint family is carrying on business and now the father wants to settle his sons separately by dividing the joint family business. Hence it cannot be said that the landlord is not carrying on the business on the date of petition, and further it cannot be said that the fathers intention to settle his sons separately during his life time is not bona fide one. Both the authorities below have found that the intention of the landlord to settle his sons is in the interest of the family and hence the need of the landlord for owners occupation is bona fide requirement. 8. So far as the enmity is concerned, the Rent Controller has elaborately considered in his order and found that the petitions have not been filed by the landlord due to the enmity that had been developed, by the conduct of the petitioners in filing the criminal complaints. The Appellate Authority in paragraph 38 of his judgment has concurred with the Rent Controller and found that there is no oblique motive for the landlord to file the RCOPs. 9. So far as the plea of the counsel for the petitioners with regard to the contradictory nature of the pleadings and evidence, I am of the view that both the authorities below have considered the plea raised by the landlord as well as the evidence available on record. Once the evidence has been considered and the authorities below have given a finding, it is not open to this Court to reassess the evidence once again under Section 25 of the Act. In fact it has been held by this Court in a recent judgment reported in Rengaiyan v. Noorullah ( 1996 (I) CTC 681 = 1996-2-L.W. 107) as follows:— “Even though the revisional powers of this Court under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 is not similar to Section 100 of the Civil Procedure Code, yet the revisional powers of the High Court are not wide enough to go into the question of fact in detail and assess the evidence. Unless the evidence is proved to be false or incorrect this Court will not interfere with the finding of facts rendered concurrently by the Rent Controller as well as the Appellate Aut hority. In Sri Raja Lakshmi Dyeing Works v. Rangaswamy (1980 SC 1253), the Supreme Court of India has laid down the principle in the following words with reference to Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960:— “Therefore, despite the wide language employed in Section 25 the High Court quite obviously should not interfere with findings of fact merely because it does not agree with the finding of the subordinate authority. The power conferred on the High Court under Sec. 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act may not be as narrow as the revisional power of the High Court under Section 115 of the Code of Civil Procedure but in the words of Untwalia, J in Dattonpant Gopalavarao v. Vithalrao Maruttirao 1975 (2) SCC 246 : AIR 1975 SC 1111 “it is not wide enough to make the High Court a second court of first appeal”. Therefore, I am not in a position to accept the contention of the learned counsel for the petitioner that the findings of the rent controller as confirmed by the Appellate Authority deserve any interference.” I am in entire agreement with the view expressed by the learned judge. 10. Moreover the finding of both the authorities is purely a question of fact, based on evidence available on record. It is not the case of the counsel for the petitioners that the authorities have failed to consider any material available on record. I do not find any infirmity warranting interference of this Court in revision. Accordingly, the Civil Revision Petitions are dismissed. However, there will be no order as to costs. 11. The petitioners are given three months time from to-day to vacate the premises on condition that they should file an affidavit before this Court within a week undertaking to vacate the premises immediately on the expiry of the period granted by this Court, failing which it is open to the respondent to execute the order of the R.C.O.Ps. forthwith.