P. Prakasamurthy v. P. Rajendran — 1999 DIGILAW 148 (MAD)

Judgment : .1. The landlord in R.C.O.P. No. 31 of 1983 on the file of the Rent Controller, Coimbatore is the revision petitioner. The tenant in that proceeding is the respondent herein. Eviction was sought for on two grounds namely, demolition and reconstruction and owners occupation of a non-residential building. On merits, the learned Rent Controller ordered eviction on both the grounds. The tenant appealed in R.C.A. No. 161 of 1990 before the Appellate Authority, Coimbatore and the said appeal was allowed on merits. Hence the present revision before this court at the instance of the landlord. .2. I heard Mr. M.S. Krishnan, learned counsel appearing for the revision petitioner and Mr. Jagadeesh, learned counsel appearing for the respondent in this revision. The appellate authority had allowed the appeal filed by the tenant holding that the requirement of the landlord on the ground of owners occupation of a non-residential building in the occupation of the tenant is hit by Section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act and the requirement of the building on the ground of demolition and reconstruction, the appellate authority held that the landlord has not made out any case at all. According to Mr. M.S. Krishnan, learned counsel appearing for the revision petitioner, the conclusion arrived at by the appellate authority that section 19 of the said Act would operate as a res judicata for the present landlord to maintain his petition on the ground of owners occupation of a non-residential building, is wholly opposed to law and in so giving the said finding, the appellate authority had failed to take into account the change in the circumstances. The learned counsel would further contend that the change in the circumstances, if there are any, should, be taken into account while deciding whether the bar under Section 19 of the said Act would operate or not, is the judgment of this court in a number of judgments. As far as the requirement on the ground of demolition and reconstruction is concerned, according to the learned counsel for the petitioner, the finding of the appellate authority is opposed to evidence and in any event, the totality of the circumstances available in this case on that ground do make out that the landlord bona fide requires that building for demolition and reconstruction. All the materials as contemplated in the judgment of the Hon’ble Supreme Court of India in a case reported in Vijay Singh & others v. Vijayalakshmi Ammal , 1997 (1) L.W. 218 are established in this case and therefore the Appellate Authority should not have interfered with the order of the Rent Controller on that ground also. Per contra, the learned counsel for the respondent would state that in the year 1974, the present petitioner’s father (he was then the landlord) filed a petition for eviction on the very same ground of owners occupation of a non-residential building for the requirement of his son, who is none else that the present petitioner. The present petitioner in that case had given evidence as P.W.1 and on merits, the learned Rent Controller had held against the landlord. Therefore that, judgment having become final, would definitely operate on the principle enumerated under section 19 of the said Act. As far as the ground of demolition and reconstruction is concerned, the learned counsel for the respondent would contend that the commissioner’s report and the plan which is marked in this case as Exs.C.1 and C.2 relates to some other portion in the occupation of some other tenant in the very same building and there is nothing in that report to indicate the condition of the building in the occupation of the tenant in this case. Therefore in the absence of the condition of the building, the appellate authority had rightly held that the landlord has not made out any case for demolition and reconstruction. 3. In the light of the arguments advanced by the learned counsel on either side, I perused the records as well as the material papers available before this court. Let me now consider the question whether the landlord has made out any case for getting the building on the ground of owners occupation of a non-residential building and whether his requirement is hit by section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act. The learned Rent Controller, on the question whether the landlord is carrying on business as stated by him, found that he is carrying on business in the name of Prakash and Company in a building at Rengaih Gouder Street, which belongs to his mother. The learned Rent Controller, on the question whether the landlord is carrying on business as stated by him, found that he is carrying on business in the name of Prakash and Company in a building at Rengaih Gouder Street, which belongs to his mother. Exs.P.18 to P.22 are the commercial tax assessment orders relating to the business of the petitioner for the period 1980 to 1982. The petitioner had also been supplying the printing materials in which he deals, to various buyers and Ex.P.23 is one such document evidencing the said transaction. Exs. P. 24, P.25 and P. 26 are some other documents evidencing the business which is stated to be carried on by the landlord petitioner. The Appellate Authority had also found that the landlord had given clear and cogent evidence in consistent with his pleadings on the requirement of owners occupation of a non-residential building. Therefore on the question whether the landlord carries on business or not, the finding is concurrent. .4. However the learned Rent Controller, on going through the materials, found that Section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act will not have any impact on the facts and circumstances of this case. But the appellate authority has held against the landlord on this issue. Now, let me consider whether the landlord would be entitled to the relief in this case inview of Section 19 of the said Act. Under Section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act, “ any application mentioned in that section shall be summarily rejected, if such application arises between the same parties or between the parties under whom they blame substantially the same issues as have been finally decided in a former proceeding under this Act or.........”. The question that falls for consideration in this case is whether the requirement of the landlord on the ground of owners occupation of a non-residential building has been sub-stantially raised and finally decided earlier in any former proceedings. It is no doubt true that in the year 1974, R.C.O.P. No. 253 of 1974 came to be filed by one Balasubramania Chettiar against the present tenant before the learned rent controller, Coimbatore. Two grounds of eviction were put forward in that case namely, wilful default in the payment of rent and owners occupation of a non-residential building. It is no doubt true that in the year 1974, R.C.O.P. No. 253 of 1974 came to be filed by one Balasubramania Chettiar against the present tenant before the learned rent controller, Coimbatore. Two grounds of eviction were put forward in that case namely, wilful default in the payment of rent and owners occupation of a non-residential building. Balasubramania Chettiar is none else than the father of the present petitioner/landlord. The requirement of the landlord in that proceeding was to accommodate his son, namely the present petitioner, in the premises which is in the occupation of the tenant. On behalf of the landlord, his son (the present petitioner/landlord) was examined as P.W.1. The learned Rent Controller dismissed that application by judgment dated 14. 76 and the said judgment is marked as Ex.B.1 in this case. The said judgment was not appealed. .5. I carefully perused the judgment referred to above. It is stated in the said judgment that the landlord’s son in the earlier proceedings was carrying on business at Premises No. 455, namely that portion being the rear portion of the tenanted premises. The evidence in that case disclosed that the landlord in that proceeding was doing business at Rengiah Gouder street and in the upstairs portion of that building, a recent construction had come up. The said building in Rengiah Gouder Street was found to be the building of the landlord in that application. The evidence in that case further disclosed that P.W.1 in that rent control case (the present petitioner/landlord) had put up his business sign board in the upstairs portion of that building. The Rent Controller also found that one of the rear portion of that tenanted premises was also rented out to one Easwaran. On these facts, the learned Rent Controller in that case found that the landlord’s son in that proceeding was intending to have his business place at Rengiah Gouder Street and therefore there cannot be any bona fide requirement by the landlord of that petition premises for his own use and occupation. Much water had flown under the bridge after that time. Change in circumstances have taken place, the vital change being the registered partition deed dated 211. 80 to which, Balasubramania Chettiar and his sons, including the present petitioner/landlord are parties. The tenanted premises in this case measuring about 171?2 feet east-west and 50 feet north-south, in all 875 sft. Much water had flown under the bridge after that time. Change in circumstances have taken place, the vital change being the registered partition deed dated 211. 80 to which, Balasubramania Chettiar and his sons, including the present petitioner/landlord are parties. The tenanted premises in this case measuring about 171?2 feet east-west and 50 feet north-south, in all 875 sft. came to be allotted to the present petitioner/landlord. The situation that prevailed when R.C.O.P. No. 253 of 1974 was filed was that, the present landlord/petitioner was found to be carrying on business not only in the rear portion of the tenanted premises therein, but also found to have shown an inclination and intention to have his business situated in the upstairs of the building belonging to his father/landlord therein at Rengiah Gowder Street. The evidence available in this case would clinchingly show that the petitioner is now not only residing with his mother in a different street, but also he is carrying on his business operations from that place. The evidence of the landlord in this case is that, he is not in occupation of any other nonresidential building of his own for the purpose of the business which he is carrying on. The partition deed in this case is marked as Ex.A.1 and it proves beyond doubt that the tenanted premises fell to the share of the present landlord/petitioner. There is nothing on record, from which it could even be inferred, that the present landlord is in occupation of any other non- residential building of his own for the purpose of the business which he is carrying on. The recent trend of judgments on the requirement of owners occupation of a non-residential building is that, the person for whose benefit the building is sought for should not be in occupation of any other non-residential building of his own for the said purpose, though the person who moves such an application may be shown to be in occupation of such a building. 6. The former Hon’ble Chief Justice, Ramaprasada Rao, in a judgment reported in R.J. Mehta & Company v. Prootam Singh , 1979 (II) M.L.J. 19 had stated that “In the doctrine of res judicata no magic is involved. It is essentially a pragmatic principle which has to be applied on the facts and circumstances of each case. 6. The former Hon’ble Chief Justice, Ramaprasada Rao, in a judgment reported in R.J. Mehta & Company v. Prootam Singh , 1979 (II) M.L.J. 19 had stated that “In the doctrine of res judicata no magic is involved. It is essentially a pragmatic principle which has to be applied on the facts and circumstances of each case. A decision in an earlier case is res judicate in a later case where such an issue might and ought to have been raised in the earlier proceedings.” In yet another judgment by the same Hon’ble Chief Justice which is reported in Amirtharaj v. Dr.(Mrs) K. Inayath Ali , 1979 (II) M.L.J. 324 , the facts are as follows: “Dr.(Mrs) A filed a petition for eviction on the ground of owners occupation of a nonresidential building stating that she needed a clinic for her own use and that she was residing in a rented premises. She lost throughout. That case was filed in the year 1963. Again in the year 1973, the very same Doctor filed another petition for eviction stating that her children had grown up and that she finds it difficult to continue in the rented premises. She also added that her son had become a Doctor and he was occupying the downstairs portion in the rented premises. A plea of bar under Section 19 of the said Act was raised. The learned Hon’ble Chief Justice held in the said case that having regard to the facts and circumstances of that case and the changed law, Section 19 of the said Act was not a bar to the maintainability of the said application.” His Lordship Hon’ble Justice Srinivasan (as His Lordships then was) in a judgment reported in G. Majeed Mohammed & Co., etc. v. A. Rajagopal Pillay , 1994 (2) L.W.564 held that “it has been held in several cases that if the circumstances which prevail at the time of the prior proceeding had changed, a fresh proceeding could be instituted for the same relief based on the changed circumstances.” Therefore the judgments referred to above would clearly indicate that section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act will have no application if there is a change in circumstances between the prior proceeding and the latter proceeding. The appellate authority in this case on hand had not taken into account any of the change in circumstances as noticed by me in this judgment. Simply and mechanically going by section 19 of the said Act, the appellate authority decided to non-suit the landlord on that ground namely, the requirement on the ground of owners occupation of a non-residential building. Therefore I am of the considered opinion that between the proceedings initiated by the present petitioner’s father in the year 1974 and by the time the present rent control petition came to be filed, the circumstances, as indicated earlier, have changed. Hence the landlord would be entitled to maintain an application on the same ground of owners occupation of a nonresidential building for his own use on the changed circumstances. Accordingly I have no hesitation to set aside the finding of the appellate authority in non-suiting the landlord by invoking the provisions under section 19 of the said Act. On facts, the appellate authority had agreed with the Rent Controller on materials placed before the court by the landlord. Therefore the landlord is entitled to have the order of eviction on the ground of owners occupation of a non- residential building. .7. Coming to the question of demolition and re-construction, it is stated in the rent control petition that the building is old and that the landlord bona fide requires the same for immediate demolition for the purpose of erecting a new construction. The statutory undertaking had also been given. It is also stated in the rent control petition that the landlord had obtained the plan and he has means to erect a new construction. In the counter, in the rent control petition, it is stated that the requirement is not bona fide and the building in question is in good and sound condition, which does not require any demolition and reconstruction. P.W.1 in his evidence would state that there is no electricity connection, toilet or bathroom to the tenanted premises and those facilities are in the adjoining portion belonging to his brother and the tenants are using it. He would further add that the rear portion of the tenanted premises is thatched and the front portion is a tiled one. Bamboo reapers support the roof and if it rains, there will be leakage. He would further add that the rear portion of the tenanted premises is thatched and the front portion is a tiled one. Bamboo reapers support the roof and if it rains, there will be leakage. He would further add that the flooring is bad and when the commissioner appointed by the court went to inspect the premises, the tenants kept the premises under lock and key. The landlord would further state that the estimated cost of construction is around Rs. 40,000 and he has means. His evidence shows that his wife is in possession of 50 souverign of gold jewels. There is literally no cross examination of the evidence of P.W.1 and the line of his evidence as extracted above. The tenant in his evidence as R.W.1 would state that the premises has a tiled roof and it is common for the tenanted as well as the adjoining premises owned by the landlord’s brother. He would further add that if the portion in his occupation is demolished, it will have an impact on the adjoining portion also. He would also admit that at the tenanted premises, there is no bath room, toilet or electricity connection and that the tenanted premises is an old one. However he would state that during rainy season, it will not leak. In the counter statement filed by the tenant, he would state that he became the tenant in the year 1962. A commissioner was appointed and he has filed his report. He would give a general report about the building by examining it from outside. The commissioner’s report would further show that to reach the rear portion of the tenanted premises, there is no direct access from the road and that the access is through the adjoining portion owned by the brother of the landlord. It is also seen from the commissioner’s report that the tiled roof in one portion at the rear of the tenanted portion is damaged. .8. The learned Rent Controller found that Ex.A2 is the sanctioned plan; Ex.A3 is the permission to put up the construction; Ex. A4 is the renewal of the permission; Ex.A5 is the renewed sanctioned plan and Ex.A6 is the renewed permission for construction. From Exs.A24 to A32, the learned Rent Controller found that the landlord had got means. .8. The learned Rent Controller found that Ex.A2 is the sanctioned plan; Ex.A3 is the permission to put up the construction; Ex. A4 is the renewal of the permission; Ex.A5 is the renewed sanctioned plan and Ex.A6 is the renewed permission for construction. From Exs.A24 to A32, the learned Rent Controller found that the landlord had got means. These are all the totality of the circumstances and broad facts available in this case, besides the genuineness of the requirement of the landlord of the building for the purpose of demolition and reconstruction. These materials, according to me, do show that the building is not in such a condition which totally eliminates the requirement of demolition and reconstruction. The petition premises is situated in the Big Bazaar Street at Coimbatore. The landlord has also established his means. He had also shown the preparations made by him for getting the sanctioned plan and permission from the municipal authorities. He had kept those plan and permission alive for quite some time. 875 Sft. is the area available and there is no bath-room or toilet in the tenanted premises. There is also no electricity connection. The fact that the commissioner was not in a position to have the inspection of the interior of the tenanted premises itself, seems to have impressed the appellate authority very much, and it would not disentitle the landlord from getting the relief as he prayed for, if the totality of the circumstances and evidence made available before the court indicates the evidence in favour of the landlord. The landlord is carrying on his business in a place not belonging to him. He is assessed to commercial tax as well. His intention to demolish the petition premises and to accommodate himself after reconstruction, not only for the purpose of his business but also for the purpose of his residence, cannot be said to be mala fide or oblique or has no relevance at all in deciding his bona fides . The learned rent controller, on facts found that the landlord has made out a case for eviction even on this ground namely, demolition and reconstruction, which of course was reversed by the learned appellate Judge on a misdirection of mind. 9. The learned rent controller, on facts found that the landlord has made out a case for eviction even on this ground namely, demolition and reconstruction, which of course was reversed by the learned appellate Judge on a misdirection of mind. 9. Under these circumstances, I am of the opinion that the appellate authority had erred in reversing the will considered judgment of the learned Rent Controller, when there are no compelling reasons to take a different view from the one taken by the appellate authority. Accordingly the finding of the appellate authority on the issue of demolition and reconstruction is also set aside. The revision is allowed. No costs. The order and decretal order dated 18. 1994 in R.C.A. No. 161 of 1990 on the file of the appellate authority, Coimbatore is set aside and the order of eviction granted in R.C.O.P. No. 31 of 1983 on the file of the rent controller, Coimbatore is restored. There shall be an order of eviction in favour of the landlord in this case as prayed for. 10. At this stage, the learned counsel for the respondent prayed for nine months time to vacate. Mr. M.S. Krishnan, learned counsel for the petitioner/landlord graciously agreed to grant nine months time. Accordingly the tenant in R.C.O.P. No. 31 of 1983 is given time till 11. 1999 to vacate and deliver vacant possession of the premises forming the subject matter of the said R.C.O.P. to the landlord/petitioner herein on condition that he files an affidavit of undertaking before the Registry of this Court on or before 3. 99 undertaking to vacate and handover vacant possession of the petition premises to the landlord on or before the time stipulated without in any way driving the landlord to the execution proceedings; he pays the entire arrears of rent, if any, on or before 22. 99 to the landlord directly; he pays the future rents commencing from February 1999 on or before the 10th of the succeeding months and he shall not sublet or induct anybody into possession of the petition premises during the time when he is in occupation, pursuant to the order of this court. 99 to the landlord directly; he pays the future rents commencing from February 1999 on or before the 10th of the succeeding months and he shall not sublet or induct anybody into possession of the petition premises during the time when he is in occupation, pursuant to the order of this court. Failing compliance of any one of the conditions referred to above, it is made clear that the order of eviction granted by the rent controller and restored by this court in this revision will be put into execution forthwith without further reference to this court.