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2003 DIGILAW 2185 (MAD)

Said Alavi v. Kannan

2003-12-31

S.K.KRISHNAN

body2003
COMMON ORDER: The tenant and the landlord are the revision petitioners and the respondents respectively in both the revision petitions. 2. The landlord has filed an eviction petition in H.R.C.O.P.No.5 of 1995 on the ground of wilful default and additional accommodation under Secs.10(2)(1) and 10(3)(c) of the Pondicherry Buildings Lease and Rent Control Act before the Rent Controller-cum-Principal District Munsif, Pondicherry. 3. It is the case of the landlord/respondent that he has been running a Saw Mill at door No.234, Anna Salai, West Boulward, Pondicherry and he has also got his office in the same premises. Another room adjacent to his office room was let out to the tenant on a monthly rent of Rs.550 from 21.11.1988 and he has paid an advance of Rs.13,000. He is running a betel nut shop therein. He had paid rent upto February, 1993 and thereafter he committed wilful default in payment of rent. In spite of repeated demands made by the landlord, the tenant has not paid the arrears of rent amounting to Rs.12,000. Further, the portion occupied by the landlord is measuring about 7’ x 8’ and therefore, the landlord finds it very difficult to accommodate customers in that small room and hence, he requires the portion, which is in the occupation of the tenant, for providing additional accommodation to his customers. Though the tenant admitted the requirement of the landlord and promised to vacate the premises, he did not keep up his promise. Under the circumstances, landlord has filed petition for eviction of the tenant/revision petitioner. 4. The tenant resisted the eviction petition stating that he has not committed wilful default in payment of rent and he has paid the rent promptly upto July, 1994 and when he tendered the rent in person for the month of August 1994, the landlord refused to receive it and asked the tenant to vacate the premises. Hence, the tenant sent the rent by Money Order which was also refused by the landlord. Then, he sent a notice requesting the landlord to inform about the particulars of his bank account for depositing the rent in his account and therefore, he has not committed any wilful default in payment of rent. The requirement of the petition mentioned premises as additional accommodation is not a bona fide one. 5. Then, he sent a notice requesting the landlord to inform about the particulars of his bank account for depositing the rent in his account and therefore, he has not committed any wilful default in payment of rent. The requirement of the petition mentioned premises as additional accommodation is not a bona fide one. 5. On consideration of both oral and documentary evidence, the Rent Controller-learned Principal District Munsif, Pondicherry has come to the conclusion that the landlord has not proved the wilful default committed by the tenant and he has made out a case for eviction on the ground of additional accommodation and allowed the petition in favour of the landlord. Aggrieved by the said order, the landlord has preferred an appeal M.A.No.15 of 1998 and the tenant has preferred an appeal in R.C.A.No.25 of 1999. Both the appeals were tried together by the Appellate Authority, learned Principal District Judge, Pondicherry and after a detailed analyses, he allowed the appeal filed by the landlord holding that the tenant has committed wilful default whereas he dismissed the appeal filed by the tenant holding that the requirement of the petition-mentioned premises by the landlord is bona fide one. Aggrieved by the said order, the tenant has filed the above revisions. 6. The points that arise for consideration in these revisions are as follows: (a) Whether the revision petitioner/tenant has committed wilful default as alleged by the respondent/landlord? (b) Whether the requirement of the petition premises by the landlord is bona fide one or not? 7.Point No.1: With regard to the wilful default, the Rent Controller came to a definite conclusion that the tenant has not committed wilful default for the reason that even though the tenant was ready to pay the arrears of rent to the landlord, the landlord refused to receive the rent tendered by the tenant in person and hence the tenant sent the rent to the landlord through money order. 8. It is pointed out that money order sent by the tenant was also not received by the landlord. Since the landlord blatantly refused to receive the rent with an ulterior motive of evicting the tenant from the premises and the tenant found no other alternative excepting to send notice to the landlord under Ex.P-2, he sent the same to the landlord. Since the landlord blatantly refused to receive the rent with an ulterior motive of evicting the tenant from the premises and the tenant found no other alternative excepting to send notice to the landlord under Ex.P-2, he sent the same to the landlord. In addition to that the Rent Controller was of the opinion that the landlord could have decided to let out his premises for more rent or for selling the property, he might have insisted the tenant to vacate the premises. Since the tenant refused to vacate the premises, the landlord might have taken steps to vacate the tenant from the premises. 9. It is pointed out that with an ulterior motive of evicting the tenant from the premises, the landlord has not accepted Rs.14,250 being the arrears of rent from the tenant covering the period from August, 1994 to February, 1996. Since the landlord was very much interested in evicting the tenant from the premises, he wantonly refused to receive the rent from the tenant. Considering the above reasons stated by the tenant, the Rent Controller was of the opinion that the tenant has not committed any wilful default and on that basis, the Rent Controller rejected the plea of wilful default. As against the rejection of the plea of the wilful default the landlord has preferred M.A.No.15 of 1998, before the learned District Judge, Pondicherry. 10. During the course of argument, the learned counsel appearing for the respondent would vehemently contend that the learned District Judge after discussing the reasons elaborately, negatived the plea of wilful default. In this regard, the learned District Judge has categorically observed that the Rent Controller had not considered the plea of wilful default in a proper perspective. It is pointed out that his discussion is not on the valid reason and he came to wrong conclusion which could not be considered as a legal presumption. It is pointed out that while discussing that issue, the learned District Judge has categorically stated that the Rent Controller while deciding the plea of wilful default, has come to the conclusion based on his own inference and has not discussed the issue in a proper perspective. 11. Emphasising the reasons stated by the Rent Controller, the learned counsel appearing for the petitioner would vehemently contend that the decision arrived at by the Rent Controller is proper and based on the legal presumption. 11. Emphasising the reasons stated by the Rent Controller, the learned counsel appearing for the petitioner would vehemently contend that the decision arrived at by the Rent Controller is proper and based on the legal presumption. In this connection, the learned counsel would point out that even though the rent was Rs.550 per month, subsequently, it was increased to Rs.625 from the year 1991 and thereafter, the rent was increased to Rs.750 from the year January, 1993. 12. It is contended by the learned counsel that even though the landlord enhanced the rent, the tenant, however, was ready to pay the enhanced rent and accordingly he paid the rent without any default upto July, 1994. When the tenant approached the landlord during the month of September to pay the rent of August, the landlord refused to receive the same and asked him to vacate the premises. 13. It is pointed out by the learned counsel that since the tenant did not expect the refusal of the landlord to receive the rent, he has chosen to send the rent through the money order. However, the landlord refused to receive the money order. For proving this fact, the tenant filed Ex.P-1. Thereafter, the tenant in order to establish his bona fide, issued a legal notice, Ex.P-3, to the landlord on 28.9.1994. The said notice was also not received by the landlord. In this juncture, the learned counsel would state that even though the tenant made all attempts to pay the rent, since the landlord refused to receive the rent, to show his bona fide, the tenant filed a petition before the Rent Controller for depositing the arrears of rent. In this connection, the learned counsel would point out that the tenant paid the arrears of rent, a sum of Rs.14,250, to the landlord. However, the said amount was received by the landlord without any prejudice to his right as per the directions of the Court. However, the learned counsel would point out that if the intention of the landlord was a genuine one he could have filed a petition under Sec.11 of the Pondicherry Buildings Lease and Rent Control Act. It is pointed out that the landlord has not come forward to file the petition under Sec.11 of the Act. 14. However, the learned counsel would point out that if the intention of the landlord was a genuine one he could have filed a petition under Sec.11 of the Pondicherry Buildings Lease and Rent Control Act. It is pointed out that the landlord has not come forward to file the petition under Sec.11 of the Act. 14. By referring the above stated reasons, the Rent Controller was of the opinion that the tenant has not made any wilful default in payment of rent and therefore, he negatived the plea of wilful default. Further, the learned counsel would point out that with regard to the enhancement of rent, except continuous attempts on the part of the tenant to tender rent to the landlord, no follow up action was taken by him, such as, issuing of notice to the landlord, for depositing the rent by filing a petition under Sec.21 of the Act and failure of a petition under Sec.11 of the Act. The above said factors have been elaborately stated by the tenant in the petition filed before the Rent Controller. 15. Further, the learned counsel would point out these factors have been corroborated by the tenant by adducing satisfactory evidence before the Court. In such circumstances, the learned counsel would point out that the decision taken by the learned District Judge negativing the plea of wilful default against the tenant not sustainable under law or on facts. 16. It is a fact that the above points have been categorically stated in the petition filed by the tenant before the Rent Controller. It is also an admitted fact that the tenant has categorically corroborated these facts while adducing evidence during the rent control proceedings. However, the District Judge has categorically discussed about the failure of the tenant in sending the reply to the landlord after the receipt of the notice received from the landlord on 20.10.1994 under Ex.A-1. In this connection, the learned counsel has emphasised very much while referring this point in his order. While referring about this point fact the learned District Judge has stated in his order as follows: “No reply was sent by the tenant to the landlord refuting the claim of the landlord that the rent was only Rs.550 p.m., and that the tenant was in arrears of rent from March, 1993.” 17. While referring about this point fact the learned District Judge has stated in his order as follows: “No reply was sent by the tenant to the landlord refuting the claim of the landlord that the rent was only Rs.550 p.m., and that the tenant was in arrears of rent from March, 1993.” 17. In this regard the learned counsel would point out that if the tenant really, refutes the stand taken by the landlord that he was in arrears of rent, from March, 1993 to December, 1994, then he would have very well refuted this allegation by sending proper reply to the landlord immediately after the receipt of the said notice. At this juncture, it is pointed out that the tenant neither refuted the allegation of the landlord nor emphasise his stand that he was willing to pay the arrears of rent to the tenant for the period from August, 1994 to February, 1996. 18. It is pointed out that the tenant has not come forward to pay the arrears of rent to the landlord within three months from the date of receipt of the notice under Ex.A-3. Considering the valid reasons, the learned District Judge, came to the right conclusion that the order passed by the Rent Controller, with regard to the plea of wilful default was not sustainable under law. In such circumstances, this Court does not find any irregularity of infirmity in the order passed by the learned District Judge. 19.Point No.2: With regard to the relief of additional accommodation sought by the landlord, the learned counsel appearing for the petitioner would vehemently contend that the landlord has not specifically pleaded with regard to the requirement of additional accommodation for his occupation. In addition to that, it is pointed out that the landlord has not adduced satisfactory evidence corroborating facts relating to the requirements of additional accommodation. In this connection, the learned counsel relied on the following decisions for consideration. (1) R.Krishnaswamy v. N. Arumugam, (1993)1 M.L.J. 122 ; (2) Ramalingam Pillai (Died) and seven others v. Murugesan and another, (1993)1 L.W. 356 ; (3) Radhakrishnan v. Seethalakshmi, (1998)1 L.W. 67; (4) S.M.Subbiah v. S. Nandappan and others, 1999 M.L.J. (Supp.) 594: (1999)3 C.T.C. 512 ; (5) S.Mohammed Iqubal v. M.Padmanabhan, (1999)3 C.T.C. 616; (6) S.V.M.Nagavairavasundaram v. S.Baseerathan, (1993)1 L.W. 331 ; (7) N.Dakshinamoorthy v. Alphonsea Celestine Kamala Benjamine, (2000)2 M.L.J. 72 . 20. 20. On a perusal of the reported decisions relied on by the learned counsel for the petitioners with regards to the requirement of additional accommodation, that has to be pleaded specifically. It is to be seen that in the absence of the specific plea and in the absence of corresponding evidence to that effect, the plea of additional accommodation sought for by the landlord has to be rejected by the authority. In this connection, the learned counsel would point out that the landlord has not pleaded the requirement of additional accommodation for his bona fide occupation. At this juncture, it is pertinent to read the following provision of law: 21. Sec.10(3)(c) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 reads thus: “A landlord who is occupying only a part of building, whether residential or non-residential may, notwithstanding anything 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.” 22. Further, the learned counsel would argue that the landlord has not established his bona fide requirement of additional accommodation. Since the learned counsel vehemently contended these valid grounds for consideration, it is pertinent to discuss about these aspects in detail. 23. In this connection the learned counsel appearing for the respondent would point out that the landlord has specifically pleaded the requirement of additional accommodation, in para 4 of the petition filed before the Rent Controller. In addition to that, the landlord has adduced satisfactory evidence before the concerned authority for the requirement of additional accommodation. In support of his contention, he also relied on the following decisions: (1) Ruth Margaret Gonsalves v. K.T.H. Presses by its Proprietor, Kumar, 100 L.W. 258; (2) M.Sheriff v. Kathija Beevi and another, (1994)1 L.W. 406 ; (3) G.R.Ragupathy v. Dr.K.Sankar, represented by Dr.K.G.Ashok Kumar, (1996)2 L.W. 494 (4) N.Dakshinamoorthy v. Alphonsea Celestine Kamala Benjamine, (2000)2 M.L.J. 72 ; (5) S.M.Ispahani and another v. Harrington House School by its Honorary Secretary, Madras, (2000)2 M.L.J. 38 : (2000)1 C.T.C. 634 ; (6) Hiralal Moolchand Doshi v. Barot Raman Lal Ranchhoddas (Dead) by L.Rs., A.I.R. 1993 S.C. 1449. 24. 24. At this juncture, it is pertinent to point out that since the landlord raised the specific plea of additional accommodations and also adduced satisfactory evidence before the concerned authority, the Rent Controller allowed the petition in favour of the landlord. It is seen that on the basis of specific plea raised by the landlord and also satisfactory evidence adduced by the landlord with regard to the requirement of additional accommodation, the learned District Judge has come to a definite conclusion that the requirement of additional accommodation sought for by the landlord is a bona fide one and therefore, the learned District Judge has confirmed the order of the Rent Controller. 25. It is an admitted fact that the landlord is in occupation of a small room measuring to the extent of 7’ x 8’ feet adjacent to the said room, he let out the premises measuring to the extent of 8’ x 9’ feet to the tenant. According to the landlord, he was not able to accommodate the customers to transact the business in the small room, wherein he is in occupation. 26. If the premises let out to the tenant is added to the existing space being occupied by the landlord, the landlord would get a space of 15’ x 17’ feet. With regard to these points, the landlord has given satisfactory evidence before the Rent Controller. 27. It is pointed out that once the Court comes to the definite conclusion that the relief sought for by the landlord for additional accommodation is bona fide, in such circumstances, the Court has to analyse comparative hardships that could be caused to the tenant in the event of ordering eviction would outweigh the hardship that could be caused to the landlord if eviction order is not passed. 28. As far as this case is concerned, the learned counsel appearing for the respondent would point out that for proper disposal of the application as contemplated under Sec.10(3)(c) of the Act, sufficient reasons have been shown by the landlord with regard to the additional accommodation as well as the advantages that could be caused if order of eviction is passed. 29. While referring about the comparative hardships, the learned counsel would point out that the landlord has clearly stated all the advantages to be caused to him if the order of eviction is passed. 29. While referring about the comparative hardships, the learned counsel would point out that the landlord has clearly stated all the advantages to be caused to him if the order of eviction is passed. Similarly, the tenant also has categorically stated about his hardships to be caused to him in the event of passing an eviction order. 30. At this juncture, the learned counsel appearing for the respondent would point out that the tenant himself has admitted that he is running similar one other betel nut shop at the corner of Savarirayalu Street under the name and style of “New Lucky Stores”. The tenant is carrying on a similar business what he is doing at the demised premises. With regard to the investment of money in the demised premises, even though the tenant has stated that he has invested a lot of money in the demised premises, during the course of examination, he has not established the same. It is to be pointed out that if eviction is ordered against the tenant, the tenant may not be put to severe hardship, since he is running a similar business in the abovesaid premises. He can very well shift the materials to the said building and very well carry on his business without facing any hardship or problem. In this connection, the learned counsel would point out that when comparing the hardships of the tenant, it would outweigh the advantages of the landlords if eviction is ordered. 31. In the decisions relied on by the petitioner, the following principle is laid down. “The absence of necessary pleadings and clear evidence is fatal to the petition for eviction filed by the landlords.” 32. As already stated above, with regard to the plea of additional accommodation, there is specific pleading and satisfactory evidence of the landlord and also it is proved that the plea of additional accommodation is bona fide one. On the above aspects, both the Courts below took a concurrent view. 33. As already stated above, with regard to the plea of additional accommodation, there is specific pleading and satisfactory evidence of the landlord and also it is proved that the plea of additional accommodation is bona fide one. On the above aspects, both the Courts below took a concurrent view. 33. Further, the decision in S.M.Subbiah v. S.Nandappan, 1999 M.L.J. (Supp.) 594: (1999)3 C.T.C. 512 , strongly relied on by the petitioner, is not applicable to the case on hand, since in the said case, there was no pleading nor evidence nor any finding on the relative hardship and therefore, this Court allowed the revision filed by the petitioner/tenant, whereas as already stated, in this case, there is necessary pleading and satisfactory evidence and also the concurrent finding of the Courts below in regard thereto. In such circumstances, this Court is of the view that the decisions relied on by the petitioner would not lend any support to his contention. 34. In this connection, the learned counsel appearing for the respondent would vehemently contend that the said decision is not applicable to the facts of this case for the reason that both the parties have categorically stated about their respective relative hardships. Further, the learned counsel would point out that the landlord as well as the tenant have stated their positions, in their evidence if the order of eviction is passed or not passed. 35. In the above circumstances, when there is necessary pleading and satisfactory evidence with regard to the plea of additional accommodation and also the advantages to the landlord and the hardships to the tenant if eviction order is passed, this Court is of the view, in totality of the circumstances of the case, that the advantages to the landlord, if eviction order is passed, would outweigh the hardships to be caused to the tenant in the event of eviction, since the tenant is running the same business in some other place, which is evident from his evidence, whereas there is no other place for the respondent, except the present one, to run his business, and therefore, these revisions fail and have to be dismissed. 36. The learned District Judge has categorically discussed about this legal dictum in an elaborate manner and concluded his findings in favour of the landlord. 37. 36. The learned District Judge has categorically discussed about this legal dictum in an elaborate manner and concluded his findings in favour of the landlord. 37. In the light of the discussions held above, this Court is not inclined to allow these revision petitions. Further, this Court does not find any irregularities or infirmities in the order of the learned District Judge and also this Court does not find any valid reasons for allowing these revision petitions. 38. Accordingly, the revision petitions are dismissed. No costs.