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2002 DIGILAW 170 (MAD)

M. Navamani v. A. S. A. Arumugham

2002-03-01

P.THANGAVEL

body2002
ORDER: This Civil Revision Petition has been filed by the tenant against the judgment and decree dated 20.3.2001 and made in R.C.A. No.38 of 1996 on the file of the learned Rent Control Appellate Authority Sub Judge, Virudhunagar. 2. The facts that are necessary for the disposal of this Civil Revision Petition are as follows: The revision petitioner who is the tenant of the premises described in the rent control petition on a monthly rent of Rs.260 (Rs.130-00 towards rent and Rs.130-00 towards amenities). He is the respondent before the Rent Control Court. A sum of Rs.520 was received by the respondent herein as landlord of the premises towards advance. The tenancy is according to English calendar month. Respondent herein in occupation of the rental premises bearing door No.7, T.S. Chidambara Nadar Street, Virudhunagar. Respondent is not having any other non-residential premises of his own in Virudhunagar to carry on his business excepting the building in which the revision petitioner is in occupation as tenant. The rear portion of the building in which demised premises situate was vacated by one Nagarajan a tenant and the said premises is kept vacant by the respondent herein. The premises under the occupation of the respondent herein. The revision petitioner has not vacated the premises despite request. It is on this ground the respondent herein has petitioner before Rent Control Court has filed a petition for eviction of the revision petitioner on the ground of own use and occupation under Sec.10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter called as “the Act”. 3. The revision petitioner as respondent before the Rent Control Court resisted the claim made by the respondent herein on the following grounds: The petition filed by the respondent herein as petitioner is not maintainable as per law. The requirement of the demised premises for own use and occupation is not bona fide. The respondent has been in possession of the premises bearing door No.7, T.S. Chidambara Nadar Street, Virudhunagar for over 40 years and there was no demand by the landlord of the said premises to vacate the same by the respondent herein. The respondent herein also is having many other non-residential buildings of his own in Virudhunagar itself. The rent for the premises is Rs.130 p.m. and not Rs.260. A sum of Rs.130 is collected towards amenities every month. The respondent herein also is having many other non-residential buildings of his own in Virudhunagar itself. The rent for the premises is Rs.130 p.m. and not Rs.260. A sum of Rs.130 is collected towards amenities every month. The respondent herein refused to receive the rent and therefore the revision petitioner filed a petition before the Rent Control Court for deposit of rent and the same was dismissed. An appeal filed against the order and decretal order was also dismissed by the Rent Control Appellate Authority. The advance of Rs.520 was not adjusted towards payment of rent. The respondent is attempting to evict the revision petitioner from the demised premises some how or other. On this ground the revision petitioner as respondent before Rent Controller has sought for the dismissal of the petition. 4. After considering the material evidence available on record, the Rent Controller has come to the conclusion that the revision petitioner herein is liable to be evicted from the demised premises and accordingly ordered eviction. The revision petitioner has preferred an appeal in R.C.A. No.38 of 1996 on the file of the learned Appellate Authority (Sub Judge), Virudhunagar against the order and decretal order of the learned Rent Controller in R.C.O.P. No.17 of 1994. After considering the submissions made by the parties and on the material evidence available on record, the learned Rent Control Appellate Authority has concurred with the findings of the Rent Controller and dismissed the appeal. Aggrieved by the judgment and decree dated 20.3.2001 and made in R.C.A. No.38 of 1996 on the file of the Rent Control Appellate Authority, Virudhunagar, the tenant as Revision petitioner has come forward with this civil revision petition. 5. The respondent herein was examined as P.W.1 and Exs.P-1 to P-3 were marked before the Rent Control Court on the side of the respondent herein. The revision petitioner who was the respondent before the Rent Control Court was examined as R.W.1 but no documentary evidence was produced before that Court. Admittedly the property described in the Rent Control petition is owned by the respondent herein and it is the front portion of the building bearing Door No.9, Vallikutty Nadar Street, Ward No.14, Virudhunagar, Kamarajar District. The revision petitioner who was the respondent before the Rent Control Court was examined as R.W.1 but no documentary evidence was produced before that Court. Admittedly the property described in the Rent Control petition is owned by the respondent herein and it is the front portion of the building bearing Door No.9, Vallikutty Nadar Street, Ward No.14, Virudhunagar, Kamarajar District. The fact also remains at the revision petitioner is paying a sum of Rs.1,230 every month as amenities charges and Rs.130 as rent, totalling a sum of Rs.260 p.m. The fact also remains that there was a tenant by name K.G. Nagarajan in the rear portion of the building and he had vacated the said portion even before filing of this petition for eviction against the revision petitioner. It is admitted in the petition that the said rear portion of the building is in the occupation of the respondent herein this premises is also required for his own use and occupation along with the abovesaid portion already under his occupation. It is not in dispute that the respondent herein is in the occupation of the premises bearing door No.7, T.S.Chidambara Nadar Street, Virudhunagar owned by public trust by paying rent for not less than 20 years. Even though the revision petitioner has stated that there are other non-residential buildings owned by the respondent herein, in Virudhunagar, no acceptable evidence has been produced before Court below the revision petitioner has not been acceptable by the Courts below. In view of the fact that the respondents is in occupation of the rented premises to carry on his business, it was concurrently held by the Courts below that the requirement of the demised premises for carrying on his own business is bona fide. It is on this ground eviction was ordered concurrently by the Courts below. On the facts narrated supra, the findings of the Courts below cannot be held to be erroneous one so far as his requirement is concerned. 6. The learned counsel for the revision petitioner would contend that the petition under Sec.10(3)(a)(iii) of the Act, is not maintainable and the respondent herein may have to file a petition only under Sec.10(3)(c) of the Act for evicting the revision petitioner from the demised premises for additional accommodation and not for his own use and occupation. 6. The learned counsel for the revision petitioner would contend that the petition under Sec.10(3)(a)(iii) of the Act, is not maintainable and the respondent herein may have to file a petition only under Sec.10(3)(c) of the Act for evicting the revision petitioner from the demised premises for additional accommodation and not for his own use and occupation. As already pointed out, it is admitted case of the respondent even in the pleadings in the petition that he is in occupation of the rear portion of the building and he requires the demised premises which forms part of the front portion, to carry on his own business. It will mean that he requires the demised premises to carry on his business by way of additional accommodation. 7. The Apex Court in Shri Balaganesan Metals v. M.N.Shanmugham Chetty and others, (1989)1 M.L.J. (S.C.) 4: A.I.R. 1987 S.C. 1668 has, held as follows: “8. It is no doubt true that under Sec.2(2) a building has been defined as not only a building or hut but also part of a building or hut let separately for residential or non-residential purpose. That would, however only mean that a part of a building which has been let out or which is to be let out separately can also be construed as a separate and independent building without reference to the other portion or portions of the building where it is not necessary to treat the entire building as one whole and inseparable unit. A limitation on the definition has been placed by the Legislature itself by providing that the application of the definition is subject to the contextual position. Therefore it follows the entire building being construed as one integral unit, it would be inappropriate to view the buildings consisting of several disintegrated; units and not as one integrated structure. Secondly, there is vast difference between the words” residential building “ and” non-residential building “ used in Sec.10(3)(a)(i) and (iii) on the one hand and Sec.10(3)(c) on the other. While Sec.10(3)(a)(i) and (iii) refer to a building only as residential or non-residential. Sec.10(3)(c) refers to a landlord occupying a part of a building whether residential or non residential. [Italics supplied] Further more, Sec.10(3) (c) states that a landlord may apply to the Controller for an order of eviction being passed against the tenant ”occupying the whole or any portion of the remaining part of the building“. Sec.10(3)(c) refers to a landlord occupying a part of a building whether residential or non residential. [Italics supplied] Further more, Sec.10(3) (c) states that a landlord may apply to the Controller for an order of eviction being passed against the tenant ”occupying the whole or any portion of the remaining part of the building“. [Italics supplied] If as contended by the appellant each portion of a building let out separately should always be construed as an independent unit by itself then there is no scope for a landlord occupying” a portion of a building “ seeking eviction of a tenant” occupying the whole or any part of the building“. It is therefore obvious that in so far as Sec.10(3)(c) is concerned the legislature has intended that the entire building, irrespective of one portion being occupied by the landlord and the other portion or portions being occupied by a tenant or tenants being occupied by a tenant or tenants should be viewed as one whole and integrated unit land not as different entities. To import the expansive definition of the word” building “ in Sec.2(2) into Sec.10(3)(c) would result in rendering meaningless the words” part of a building “ occupied by the landlord and a tenant” occupying the whole or any portion of the remaining of the building“. The third factor militating against the contention of the appellant is that if a portion of a building let out to a tenant is to be treated in all situations as a separate and independent building then Sec.10(3)(c) will be rendered otiose because the landlord can never then ask for additional accommodation since Sec.10(3)(a) does not provide for eviction of tenants on the ground of additional accommodation for the landlord either for residential or non-residential purposes. It is a well settled rule of interpretation of statutes that the provisions of an Act should be interpreted in such a manner as not to render any of its provisions otiose unless there are compelling reasons for the Court to resort to that extreme contingency.” .... .... .... It is a well settled rule of interpretation of statutes that the provisions of an Act should be interpreted in such a manner as not to render any of its provisions otiose unless there are compelling reasons for the Court to resort to that extreme contingency.” .... .... .... A landlord who is occupying only a part of a residential; building may notwithstanding contained in Clause (a) apply to the controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business which he is carrying on, as the case may be. A landlord who is occupying only a part of a non-residential; building may notwithstanding contained in Clause (a) apply to the controller for an order directing any tenant occupying the whole or any portion of the remaining part of the builbing to put the landlord in possession thereof, if he requires additional accomodation for residential purposes of a bussiness which he is carrying on, as the case may be. 16. If Clause (3) is construed in this matter there can be no scope for a contention that a landlord can seek additional accommodation for residence one and likewise he can seek additional accommodation for business purposes only if the building is a non-residential one." Following the decision reported in Shri Balaganesan Metals v. M.N.Shanmugham Chetty, (1989)1 M.L.J. (S.C.) 4: A.I.R. 1987 S.C. 1668, a learned single Judge of this Court in A.P. Swamy v. Kunjithapatham, (1994)2 M.L.J. 536 : (1994)2 L.W. 661 has held as follows: "Admittedly in the present case, the landlord is in occupation of the entire first floor portion and the tenant is in occupation of the ground floor. A plain reading of Sec.10(3)(c) of the Act would go to show that in the present case the petition ought to have been filed only under Sec.10(3)(c) of the Act. .... Therefore in the present case, the petition filed for eviction under Sec.10(3)(a)(iii) of the Act is not maintainable"..... 8. The learned counsel for the revision petitioner has also brought to the notice of this Court the decision reported in R.V. Dharmalinga Mudaliar v. K. Annamalai, (1994)2 L.W. 487 . .... Therefore in the present case, the petition filed for eviction under Sec.10(3)(a)(iii) of the Act is not maintainable"..... 8. The learned counsel for the revision petitioner has also brought to the notice of this Court the decision reported in R.V. Dharmalinga Mudaliar v. K. Annamalai, (1994)2 L.W. 487 . In that case an application filed for eviction by the landlord on the ground of requirement of additional accommodation for the use of landlord’s son and his family under Sec.10(3)(c) of the Act was resisted by the tenant by contending that it would be open to the landlord to ask for additional accommodation for himself and not on the ground of requirement of his son or any member of his family. In that case it was held by a learned single judge of this Court that the application is clearly maintainable and it is open to the landlord to ask for additional accommodation in order to enable his son to live comfortably with the members of his family enjoying all facilities and it is not for the tenant to state that this should not be done on questions of relative hardship. There is absolutely no hardship to which the petitioner will be subjected by an order of eviction being passed against him. Under the abovesaid circumstances the order of eviction passed by the Appellate Authority was upheld by the learned single Judge of this Court. The principles laid down in the case cited above, would lead to hold that the landlady who is in occupation of a part of a building, cannot maintain an application for eviction under Sec.10(3) (a) (iii) of the Act, but only under Sec.10(3)(c) of the Act. Since this petition has been filed by the respondent herein as landlady under Sec.10(3)(a)(iii) of the Act, this petition cannot be maintained as rightly contended by the learned counsel for the revision petitioner. In view of the said position, the concurrent findings of the Courts below are not in accordance with pronounced judgments of this Court as well as by the Apex Court. Therefore the concurrent findings of the Courts below are liable to be set aside. 9. The learned counsel for the respondent herein submits that the order passed by this Court should not stand in the way of the respondent herein in filing an appropriate petition for eviction under appropriate Section of the Act. Therefore the concurrent findings of the Courts below are liable to be set aside. 9. The learned counsel for the respondent herein submits that the order passed by this Court should not stand in the way of the respondent herein in filing an appropriate petition for eviction under appropriate Section of the Act. This Court makes it clear that this order will not sand in the way of the respondent herein in approaching the Court for eviction in accordance with law. 10. In fine the decree and judgment passed by the learned Rent Control Appellate Authority (Sub Judge), Virudhunagar, are set aside and the civil revision etition is allowed but without costs. In view of the disposal of the main civil revision petition, the petition in C.M.P. No.1869 of 2002 is closed.