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2001 DIGILAW 318 (MAD)

P. Balambal v. Maj. Gen. L. K. Moorthy (Retd. )

2001-03-12

K.P.SIVASUBRAMANIAM

body2001
Judgment : 1. This revision is directed against the order of the Rent Control Appellate Authority, Chennai in RCA No.650 of 1996, reversing the order and decree dated 19.9.1995 made in RCOP No.2040 of 1991 on the file of the Rent Controller, Chennai. The tenant is the revision petitioner before this Court. 2. The respondents filed RCOP No.2040 of 1991 under Section 10(3A)(a)(i)(ii) and (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. 3. According to the petitioners in RCOP (hereinafter called Landlord), the mother of the respondent Smt. Parvathy Ammal had been rented out the ground floor portion (except one room) of the premises at No.21, Sate Colony, Second Street, Egmore, Chennai by Narayani Ammal and the lease agreement dated 1.2.1986 was valid upto 31.12.1986. The respondents with their mother (herein after called the tenant), were in occupation of the ground floor of the house, except one room, which the landlord"s mother had retained for storing household goods belonging to herself and their sons. The tenant's mother had been rented out the said portion for a sum of Rs.800 per month. The tenant's mother Parvathy Ammal expired on 12.4.1991 and the tenants continue to be in occupation being the legal representatives of Parvathy Ammal. 4. Narayani Ammal, the mother of the landlord suffered heart attack and was advised not to stay in the upstairs, since it could be detrimental to her health. Further, the lease agreement having come to an end on 31.12.1986, the landlord's mother requested the tenant's mother to vacate the premises, but she failed to comply with the request of Narayani Ammal. Narayani Ammal therefore, filed RCOP No.3217 of 1989 before the Court of Small Causes, Madras for eviction of the tenant's mother on the ground that the portion was required for her own use in the light of medical advise. While, the rent control proceedings were pending, the tenants mother in order to prevent the landlord and their mother form using the room in the ground floor filed O.S.No. 10439 of 1989 for permanent injunction. The injunction suit was still pending and however, an interim relief as prayed for was not granted. 5. The landlord submitted that on 21.10.90 during the pendency of the said proceedings, the landlord's mother Narayani Ammal died leaving behind a Will dated 15.7.1983 bequeathing the land and building to her three children, (1) Mrs. The injunction suit was still pending and however, an interim relief as prayed for was not granted. 5. The landlord submitted that on 21.10.90 during the pendency of the said proceedings, the landlord's mother Narayani Ammal died leaving behind a Will dated 15.7.1983 bequeathing the land and building to her three children, (1) Mrs. Valli Narayanan, wife of late G. Narayanan, (2) Maj. Gen. L.K. Moorthy and (3) Admiral L. Ramdoss, the landlords herein. In the Will, she had specifically directed that Mrs. Valli Narayanan should be permitted to occupy the first floor till her death and her possession should not be disturbed. Therefore, the petitioners are now left with only the ground floor for their occupation. Since RCOP No.3217 of 1989 was filed by Narayani Ammal for her personal use, the landlord have withdrawn the said RCOP. The tenant's mother Parvathy Ammal having expired on 12.4.1991, the landlords are filing this petition against the legal representatives of late Parvathy Ammal, who are in occupation of the said premises. 6. It is further contended that the first petitioner was a retired Army Officer having served for the country and special war conditions as prescribed under Section 10(3-A)(b) of the said Act and the certificate was appended as annexure-1. The first petitioner, who lived in the second floor apartment in Pune and was a heart patient, who has been advised by Doctors to shift to a more convenient ground floor apartment. Further, the apartment in Pune, though in the name of the first petitioner was actually being used by his son, who was employed in Pune. The house at Pune was even otherwise not adequate to meet the requirements of both the first petitioner and his son. In any case, due to the medical reasons, the first petitioner desires to shift to the ground floor of his parental house at Madras. He intends to settle down at Madras. The first floor is in the occupation of his sister being a widow of a retired Army Officer. Therefore, the first petitioner requires a portion in occupation for his own requirements. 3. He intends to settle down at Madras. The first floor is in the occupation of his sister being a widow of a retired Army Officer. Therefore, the first petitioner requires a portion in occupation for his own requirements. 3. According to the petitioners in RCOP (hereinafter called Landlord), the mother of the respondent Smt. Parvathy Ammal had been rented out the ground floor portion (except one room) of the premises at No.21, Sate Colony, Second Street, Egmore, Chennai by Narayani Ammal and the lease agreement dated 1.2.1986 was valid upto 31.12.1986. The respondents with their mother (herein after called the tenant), were in occupation of the ground floor of the house, except one room, which the landlord"s mother had retained for storing household goods belonging to herself and their sons. The tenant's mother had been rented out the said portion for a sum of Rs.800 per month. The tenant's mother Parvathy Ammal expired on 12.4.1991 and the tenants continue to be in occupation being the legal representatives of Parvathy Ammal. 4. Narayani Ammal, the mother of the landlord suffered heart attack and was advised not to stay in the upstairs, since it could be detrimental to her health. Further, the lease agreement having come to an end on 31.12.1986, the landlord's mother requested the tenant's mother to vacate the premises, but she failed to comply with the request of Narayani Ammal. Narayani Ammal therefore, filed RCOP No.3217 of 1989 before the Court of Small Causes, Madras for eviction of the tenant's mother on the ground that the portion was required for her own use in the light of medical advise. While, the rent control proceedings were pending, the tenants mother in order to prevent the landlord and their mother form using the room in the ground floor filed O.S.No. 10439 of 1989 for permanent injunction. The injunction suit was still pending and however, an interim relief as prayed for was not granted. 5. The landlord submitted that on 21.10.90 during the pendency of the said proceedings, the landlord's mother Narayani Ammal died leaving behind a Will dated 15.7.1983 bequeathing the land and building to her three children, (1) Mrs. Valli Narayanan, wife of late G. Narayanan, (2) Maj. Gen. L.K. Moorthy and (3) Admiral L. Ramdoss, the landlords herein. In the Will, she had specifically directed that Mrs. Valli Narayanan, wife of late G. Narayanan, (2) Maj. Gen. L.K. Moorthy and (3) Admiral L. Ramdoss, the landlords herein. In the Will, she had specifically directed that Mrs. Valli Narayanan should be permitted to occupy the first floor till her death and her possession should not be disturbed. Therefore, the petitioners are now left with only the ground floor for their occupation. Since RCOP No.3217 of 1989 was filed by Narayani Ammal for her personal use, the landlord have withdrawn the said RCOP. The tenant's mother Parvathy Ammal having expired on 12.4.1991, the landlords are filing this petition against the legal representatives of late Parvathy Ammal, who are in occupation of the said premises. 6. It is further contended that the first petitioner was a retired Army Officer having served for the country and special war conditions as prescribed under Section 10(3-A)(b) of the said Act and the certificate was appended as annexure-1. The first petitioner, who lived in the second floor apartment in Pune and was a heart patient, who has been advised by Doctors to shift to a more convenient ground floor apartment. Further, the apartment in Pune, though in the name of the first petitioner was actually being used by his son, who was employed in Pune. The house at Pune was even otherwise not adequate to meet the requirements of both the first petitioner and his son. In any case, due to the medical reasons, the first petitioner desires to shift to the ground floor of his parental house at Madras. He intends to settle down at Madras. The first floor is in the occupation of his sister being a widow of a retired Army Officer. Therefore, the first petitioner requires a portion in occupation for his own requirements. 7. The second petitioner is the Chief of Staff of the Indian Navy having served in the special war conditions and is still serving in the Indian Navy and the certificate to the said effect was signed by the prescribed authority was appended as Annexure-2. The second petitioner hold a high position in the Navy and he also intends to settles his family at Madras. He is due for his retirement in 1993 and in any case, he requires the ground floor to resettle his family after retirement. 8. The second petitioner hold a high position in the Navy and he also intends to settles his family at Madras. He is due for his retirement in 1993 and in any case, he requires the ground floor to resettle his family after retirement. 8. The landlords therefore, issued legal notice dated 7.2.1991 calling upon the mother of the tenant to vacate the ground floor portion. She was given 30 days time for vacating the premises. But without acceding the demand, a reply was sent on 24.2.1991. Thus, the ground floor portion now occupied by the tenant is bona fide required by the first petitioner for his own occupation. The petitioners/landlords do not have any own building in the city and therefore, they need the ground floor portion in the occupation of the respondent. The first petitioner was in essential service and the second petitioner is still in the essential service. In addition, Smt. Valli Narayanan, Sister of the petitioners is the widow of another Army Officer. Hence the petitioner for eviction. 9. The tenants in their counter admitted that the ground floor portion of the premises was let out to them (excluding one room) by the Narayani Ammal for Rs.800 per month. On 1.2.1986, an agreement was entered into. It was renewable after 31.12.1986. After the said period no lease deed was executed. The tenants were informed by Narayani Ammal that her sons had retired from Army Services and were settled in Pune. The second petitioner had property of his own in Hyderabad. The tenant's mother was informed by Narayani Ammal that they will not attempt to evict her. Narayani Ammal was also staying with her son at Cochin. In the year 1986, the second petitioner and his wife started giving trouble to the tenants and their mother. RCOP No.3217 of 1989 was not filed by Narayani Ammal. The tenants were also threatened through the help of the Police. The wife of the second petitioner in the eviction petition is also personally threatening the tenant's family. The tenants also complained about the high-handed action of the second petitioner/landlord to the President of India. The counsel for the second petitioner met the tenants and demanded an apology letter and also to withdraw the complaint. But, the tenants refused to oblige. The tenants also obtained favourable order in O.S.No.10439 of 1989. They are not aware of the Will of Narayani Ammal. The counsel for the second petitioner met the tenants and demanded an apology letter and also to withdraw the complaint. But, the tenants refused to oblige. The tenants also obtained favourable order in O.S.No.10439 of 1989. They are not aware of the Will of Narayani Ammal. The prayer for the owner's occupation was not sustainable and the landlord should have asked only for additional accommodation. RCOP No.3217 of 1989 was not withdrawn, but was dismissed for default. The first petitioner having retired from service and settled in Pune cannot ask for his personal occupation. The premises was too small for the petitioners, who are highly placed individuals living in the premises will not be a convenient one. The claim that they intend to settle down at Madras is false. Soon after getting vacant possession, they intend selling the property and hence they are bona fides in the petition for eviction. 10. The Rent Controller held that there was no evidence to show that Valli Narayanan was staying in the upstairs portion and that she was staying with her son at St. Thomas Mount. He further held that the petitioners having occupied high positions and having lived in palatial houses will not be inclined to live in a very small place like the petitioners premises. Therefore, according to the Rent Controller, the requirement was not bona fide and the petition had been with the result, the petition for eviction was dismissed. However, on appeal by the landlords, the Appellant Authority held that there was sufficient evidence to show that Valli Narayanan was residing at St. Thomas Mount and that she was retaining the upstairs portion in her custody under lock and key. There was no necessity to have filed a petition under Section 10(3)(c). There was also evidence to show that after retirement, the landlords wanted to settled down at Madras and they had no such premises of their own at Madras and hence their claim was bona fide. With the result, the appeal was allowed and hence, this revision by the tenants. 11. The learned counsel for the petitioner submitted the following points: (A) Section 10(3)(a) was not applicable to the present case and the petitioner should have prayed for an additional accommodation under Section 10(3)(c). (B) One of the co-owners, Valli Narayanan is a necessary party and ought to have been made a party to the proceedings. 11. The learned counsel for the petitioner submitted the following points: (A) Section 10(3)(a) was not applicable to the present case and the petitioner should have prayed for an additional accommodation under Section 10(3)(c). (B) One of the co-owners, Valli Narayanan is a necessary party and ought to have been made a party to the proceedings. There was also no evidence to show that she had taken over the first floor. (C) There were absolutely no bona fides in the petition. The landlords were settled in other parts of the country and the petition premises being a Street house was not at all sufficient for the requirement of the petitioners. The first petitioner/landlord owns a house at Pune and they were living in Pune. There was no real need, but only a desire, which was not sufficient for seeking eviction. (D) The appellate Authority ought to have considered first the issue of maintainability of eviction petition. Consideration of merits of the petition by the Appellate Authority was erroneous without deciding the maintainability of the petition. 12. Learned counsel for the petitioner further very strongly refers to the fact that the petitioners were highly persons, who were accustomed to comfortable living and hence there was absolutely no bona fides in their claim of personal requirement. They were also residing in comfortable houses at Pune and Hyderabad and had absolutely no idea of settling down at Madras and hence the Rent Controller had come to the correct decision that the eviction petition had been filed only for the purpose of selling away the property. 13. In support of his contention that the Appellate Court ought not to have considered the merits of the case without deciding the issues relating to the maintainability both under Section 10(3-A) and without impleading one of the co-owners, learned counsel refers to the observation in the following judgment that the maintainability of the petitioner should be decided first before considering the merits (vide the judgment of the Supreme Court in T.K. Lathika v. Seth Karsandas Jamnadas, AIR 1999 SC 3335 . Apart from the fact that the judgment of the Supreme Court dealt with a case, where the subsequent events rendered the petition for eviction pre-matured, I fail to understand how the said issue arises for consideration in the present case. Apart from the fact that the judgment of the Supreme Court dealt with a case, where the subsequent events rendered the petition for eviction pre-matured, I fail to understand how the said issue arises for consideration in the present case. The Appellate Authority had considered both the points relating to the maintainability of the petition, namely under Section 13(3-A) (paragraph 8 of the judgment) and the question of non-impleading of co-owner (Paragraph 13 of the judgment). Therefore, I am unable to countenance the said objections by the learned counsel. 14. In support of his contention that the petition should have been filed only under Section 10(3)(c) for additional accommodation, the learned counsel relies on the following two judgment of this Court. (1) C.S. Pillai v. Capt. M.A. Murugaraj, 1983 (II) MLJ 310 ; (2) A.P. Swamy v. V. Kunjithapadam, 1994 (2) LW 661 . 16. The above two decisions are based on the factual back ground of the respective cases. In the case reported in C.S.Pillai v. Capt. Murugaraj, 1983 (II) MLJ 310 , the landlords contention was that the ground floor of the building was in the occupation of one Ragavan, another tenant. It was later conceded that the portion occupied by Ragavan had fallen vacant and therefore, the question arose as to whether actual physical possession was necessary and it was held that the judicial procession was sufficient and that the petition ought to have been filed under Section 10(3)(c) for additional accommodation. In the judgment reported in A.P. Swamy v. V. Kunjithapadam, 1994 (2) LW 661 , admittedly the entire first floor was in the physical occupation of the landlord. 17. In the present case, the findings of both the courts below are that Valli Narayanan was not occupying the premises, but was residing at St. Thomas Mount. One room in the ground floor was kept under lock and key. Therefore, in those circumstances, the more appropriate ruling would be that of Mr. Alaigrisamy, J. as then was, in Rajammal v. V.T. Sami, 1967 (I) MLJ 46 (SN), relied on by the learned counsel for the respondents. It was held that though the rooms were kept under lock and key by the landlord, it cannot mean that the landlord is in possession of the premises within the meaning of Section 10(3)(c). 18. Alaigrisamy, J. as then was, in Rajammal v. V.T. Sami, 1967 (I) MLJ 46 (SN), relied on by the learned counsel for the respondents. It was held that though the rooms were kept under lock and key by the landlord, it cannot mean that the landlord is in possession of the premises within the meaning of Section 10(3)(c). 18. I am inclined to agree with the interpretation of the provision by Alagirisami, J. considering the natural meaning of the expressions contained in Section 10(3)(c), namely, "A landlord, who is occupying only a part of the building" and "if he requires additional accommodation." Therefore, I am unable to sustain the said ground that the petition for eviction should have been filed only under Section 10(3)(c) for additional accommodation. 19. On another ground also this objection is without any basis. The landlord, in the present case is admittedly a retired member of the Army services and he has invoked the special provisions under Section 10(3-A) of the Act, which does not make any distinction between accommodation being sought for the entire building or only a portion of the building. If such conditions are read into Section 10(3-A), the said provision would be rendered as an ineffective and unnecessary provision. There is no dispute over the fact that the landlords in the present case are entitled to invoke the said provision and have complied with the requirements thereon. The Supreme Court in Kewal Singh v. Smt. Lajwanti, 1980 (1) SCC 290 had recognised that the legislature is competent to provide for summary procedure for eviction by incorporating a separate classification among the landlords. In Col. Surinder Pal Singh Bhattal (Retd.) v. Rakesh Kumar Jain, 1996 (4) SCC 275 also the Supreme Court had an occasion to deal with the similar provision namely Section 13-A of East Punjab Urban Rent Restriction Act, 1949 and had recognised the right of the landlord, who is qualified to invoke the said provision to be entitled to seek for eviction under the provision provided. He satisfied the requirements under the provision. 20. I am unable to sustain the contention of the learned counsel for the petitioner that the special provisions will not apply, where the property is a common property. Section 10(3-A) does not lay down any such pre condition. He satisfied the requirements under the provision. 20. I am unable to sustain the contention of the learned counsel for the petitioner that the special provisions will not apply, where the property is a common property. Section 10(3-A) does not lay down any such pre condition. What ever be the definition or the ingredient of the expression "landlord" it would be equally applicable to the members of the armed forces also. The expression landlord would include and cover all the persons having joint interest in the property. 21. On the question of non impleading of Valli Narayanan, who is admittedly a co-owner, it is settled proposition of law that all the co-owners are not required to be arrayed as petitioners or to be impleaded as respondents, vide the following judgments: (1) Kanta Goel v. B.P. Pathak and others, 1977 (2) SCC 814 ; (2) K. Nanjappan v. V.K. Janaki, 1999 (II) MLJ 68. 22. A perusal of the Will executed by the late Narayani Ammal dated 15.7.1983 discloses that the petitioners in the eviction petition as well as Tmt. Valli Narayanan are given 1/3rd share each. Therefore the respondents herein are certainly entitled to maintain the petition for eviction. 23. The only other ground which requires to be considered is as to whether the requirement is bona fide or not. The objection of the tenant is that the landlords are well placed persons and are having houses in Pune and Hyderabad. The petition premises is almost a street house and definitely not a place in which they would opt to live in. Further the learned counsel for the petitioners points out that mere desire or wish by the landlord is not sufficient and what is required is that the requirement should be bona fide and based on a sincere and honest desire in good faith and that the landlords plea should be sincere, honest, real and natural. In the back ground of the above mentioned facts, the landlords do not qualify all the said requirements. In support of the said proposition, reference is made to the following rulings. (1) M.S. Zahed v. K. Raghavan, JT 1998 (8) SC 262; (2) Shiv Sarup Gupta v. Dr. In the back ground of the above mentioned facts, the landlords do not qualify all the said requirements. In support of the said proposition, reference is made to the following rulings. (1) M.S. Zahed v. K. Raghavan, JT 1998 (8) SC 262; (2) Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, JT 1999 (5) SC 201 : AIR 1999 SC 2507 ; (3) T. Sivasubramaniam and others v. Kasinath Pujari and others, JT 1999 (6) SC 405; (4) Raghunath, G. Panhale (Dead) v. M/s. Chaganlal Sundarji and Co., JT 1999 (8) SC 219. 24. Per contra, Mr. Anbumani, learned counsel for the respondents, contends that the requirement of the landlord/owner is genuine and bona fide. They belong to this part of the country and hence their only inclination is to spend their retired life at Madras. It is not disputed that they do not have any other premises of their own at Chennai. In this back ground, the learned counsel for the respondents refer to the following rulings. (1) Sarla Ahuja v. United India Insurance Co., Ltd., 1998 (3) CTC 679 : AIR 1999 SC 100 ; (2) Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde and another, 1999 (4) SCC 1 ; (3) T. Sivasubramaniam and others v. Kasinath Pujari and others, 1999 (7) SCC 275 ; (4) Anandhayee Ammal v. S.M. Khaja and Co., 1967 (I) MLJ 369 and (5) Sivanraj v. Essakkimuthu, 1999 (2) CTC 215 . 25. On this issue, I have considered the submissions of both sides in detail. The Appellate Authority has gone into the issue in greater detail and had recorded the positive finding that the claim of the landlords are bona fide. I am also inclined to confirm the said finding and the said finding is not shown to be either unreasonable or perverse. Infact, I am inclined to hold that the Rent Controller's observation that the landlords were intending to sell the property is based on no evidence at all, much less any acceptable evidence. The said finding is therefore perverse and not supported by any evidence. The Rent Controller, while concluding that since the landlord were accustomed to comfortable living, observed that their requirements were not bona fide. The said finding is therefore perverse and not supported by any evidence. The Rent Controller, while concluding that since the landlord were accustomed to comfortable living, observed that their requirements were not bona fide. The said finding is nothing more than a surmise and his further observation that the object of the eviction petition could be only for the purpose of selling the property, is again a further surmise and is not based on any evidence. The Appellate Authority had therefore rightly disagreed with the finding of the Rent Controller and set aside the said finding. I do not therefore, find any error in the finding of facts recorded by the Appellate Authority and there is no justification for interfering with the same in revision. 26. Here is a case, where the respondents having served in the armed forces and have expressed their desire to settle down in their own native town and there is nothing unnatural or improbable in their expectations. Even assuming for a sake of discussion that they may not require the premises through out the year and they would require it only for intermittent periods now and then, even so the bona fides of their requirement to not become extinguished. Infact, no such contention is raised before me to the effect that the petitioners could make use of the property only for intermittent and for broken periods. 27. There is also absolutely no basis to conclude that since the respondents/landlords had earlier occupied high positions and had been living in more comfortable accommodations it would mean that they cannot live in a small house after retirement. Old age and retirement from services always result in a change in the pattern of life and the necessity to life in smaller accommodation. The chose of the town, where they wish to live is something for them to decide and it is not for the tenant to say that they have better accommodation in Pune or Hyderabad. 28. It is also necessary to bear in mind that a reading of Section 10(3-A) shows that the said provision is a special provision and it is intended for providing a special remedy to the retired members of armed forces. 29. In the result, I do not find any ground to interfere with the well considered finding of the Appellate Authority. The revision petition is therefore, dismissed. No costs. 29. In the result, I do not find any ground to interfere with the well considered finding of the Appellate Authority. The revision petition is therefore, dismissed. No costs. Consequently, connected C.M.P. is also dismissed.