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2004 DIGILAW 108 (MAD)

Mamoola Begum alias v. Shabbir Ahmed

2004-02-04

S.SARDAR ZACKRIA HUSSAIN

body2004
Judgment :- COMMON ORDER The earlier C.R.P.No.3069 of 1998 has been filed by the landlady against the fair rent of Rs.1,090/- fixed by the Rent Controller for the petition residential premises as confirmed by the Rent Control Appellate Authority. 2. The latter C.R.P.No.710 of 2003 has been filed by the landlady against the judgment and decree dated 5.12.1994 made in R.C.A.No.284 of 1993 on the file of the Rent Control Appellate Authority reversing the eviction order dated 29.4.1992 made in R.C.O.P.No.2244 of 1989. 3. C.R.P.No.3069 of 1998:- The revision petitioner/landlady filed R.C.O.P.No.2929 of 1989 to fix fair rent to the ground floor residential premises bearing door No.23, Barracks Road, Periamet, Madras 600003. The respondent/tenant resisted the petition by filing counter. 4. The learned Rent Controller, considering the evidence of P.W.1, husband of the landlady and the Engineer, P.W.2 Ragavendra Rao and Ex.P-1, the report of the Engineer and Ex.P-2 and also considering the evidence of R.W.1, the Engineer examined on the side of the tenant as well the report of the Engineer R.W.1, Ex.R-1 and the sketch Ex.R-2 and also Exs.R-3 and R-4, fixed the fair rent at Rs.1,090/- per month to the petition residential premises. The fair rent so fixed was confirmed by the learned Rent Control Appellate Authority as per common judgment dated 18.4.1995 in R.C.A.Nos.327 and 449 of 1993 on the file of the VIII Judge, Small Causes Court, Madras filed by the tenant and the landlady respectively against the fair rent fixed in R.C.O.P.No.2929 of 1989 and both the appeals were dismissed. Therefore, the landlady not satisfied with the fair rent so fixed and confirmed in the Rent Control Appeal No.449 of 1993, has filed the earlier C.R.P.No.3069 of 1998. 5. In the earlier Civil Revision Petition, the learned counsel for the revision petitioner/landlady argued that the extent of the premises could have been taken as 1284 square feet as per the evidence let in for the landlady and the market value of the property has not been considered properly. It is also urged that the market value arrived at Rs.3,00,000/- is not proper and the fair rent has also not been correctly fixed by the learned Rent Controller as well the learned Rent Control Appellate Authority. 6. It is also urged that the market value arrived at Rs.3,00,000/- is not proper and the fair rent has also not been correctly fixed by the learned Rent Controller as well the learned Rent Control Appellate Authority. 6. The petition residential premises is the entire ground floor portion bearing door No.23, Barracks Road, Periamet, Madras 600003 excepting the staircase, room and the adjacent small asbestos sheet covered room and the tenant was paying Rs.800/- per month at the time of filing of the Rent Control Original Petition. The learned Rent Controller considering the evidence of P.W.1 and R.W.1, fixed the age of the building as 50 years and allowed the basic amenities at 15%, besides 5% for Schedule-I amenities in the cost of construction. The learned Rent Controller also considering that the petition residential premises is situated at Barracks Road, Periamet, Madras 600003, fixed the market value at Rs.3,00,000/- per ground. The learned Rent Controller also considering that the tenant has not occupied the entire ground floor portion and he has occupied only 1019 square feet besides 24 square feet covered by asbestos sheet, fixed the total area as such, and accordingly fixed the fair rent at Rs.1,090/- per month. The learned Rent Control Appellate Authority in agreeing the age of the building of the petition residential premises as 50 years adopted by the learned Rent Controller and the extent of land as 1019 square feet of R.C.C. cement roof and 24 square feet covered by asbestos sheet and also the area as fixed by the learned Rent Controller and also the market value fixed at Rs.3,00,000/- per ground considering the property is situated very near to the Poonamallee High Road, dismissed both the Rent Control Appeals filed by the tenant as well the landlady. 7. Though in the earlier Civil Revision Petition, it is argued for the revision petitioner/landlady that the market value fixed at Rs.3,00,000/- per ground is too low, there have been no satisfactory evidence on the side of the landlady before the Rent Controller to accept the case of the landlady that the market value of the petition residential premises would be more than Rs.3,00,000/- per ground and it would be Rs.6,00,000/- per ground as claimed by the landlady. Similarly, though it is claimed that the extent of the petition residential premises is 1284 square feet, such case of the landlady is not supported by the evidence. The leaned Rent Controller as well the learned Rent Control Appellate Authority rightly determined the area as 1019 square feet of R.C.C. Cement roof, besides 24 square feet asbestos sheet roof covered and accordingly arrived the cost of construction. The amount allowed towards basic amenities and Schedule-I amenities and the depreciation adopted by the learned Rent Control Controller have not been disputed before the Rent Control Appellate Authority as well in this Civil Revision Petition. Therefore, the judgment of the learned Rent Control Appellate Authority confirming the fair rent of Rs.1,090/- fixed by the learned Rent Controller, does not call for any interference in this Civil Revision Petition and so the C.R.P.No.3069 of 1998 is to be dismissed. 8. C.R.P.No.710 of 2003:- The landlady also filed R.C.O.P.No.2244 of 1989 that the petition residential premises is required for her own use and occupation. It is also stated in the petition that the revision petitioner/landlady at the time of filing of the Rent Control Original Petition has been residing in the upstairs portion of the premises bearing door No.21, Barracks Road, Madras 600003 which premises belongs to her mother and paying the rent of Rs.500/- per month to her mother. It is further stated that she does not own any other residential building excepting the petition residential premises and since she finds it difficult to climb the stairs, in that she was operated in her stomach and in view of the fact that major portion of the area in which she is residing, is covered by asbestos sheet which heat is unbearable and since that portion is situated near kitchen. 9. Such case of the landlady was resisted in the counter that the portion in which the landlady was residing, is that of her own house and that she is not paying any rent to her mother and as such, the requirement is not bona fide. 10. 9. Such case of the landlady was resisted in the counter that the portion in which the landlady was residing, is that of her own house and that she is not paying any rent to her mother and as such, the requirement is not bona fide. 10. The learned Rent Controller considering the evidence of landlady's husband P.W.1 and her mother P.W.2 and Exs.P-1 to P-8 and also the evidence of the tenant R.W.1 and Exs.R-1 to R-3 marked on the side of the tenant, found that the petition residential premises bearing door No.23, Barracks Road, Madras 600003 belongs to her mother P.W.2 Tmt.Mumthaj Begum, in which according to the landlady, she is residing in the first floor portion as a tenant, by paying rent to her mother and that the landlady was operated in his stomach as such, she cannot climb stairs and the petition residential premises being the ground floor portion, the requirement sought for own use and occupation by the landlady is bona fide and accordingly ordered eviction of the tenant on that ground. Such eviction order was challenged in the appeal in R.C.A.No.284 of 1993 and the learned Rent Control Appellate Authority disbelieving the case of the landlady, allowed the appeal and set aside the order of eviction. Therefore, the landlady has filed this Civil Revision Petition No.710 of 2003. 11. The learned counsel for the revision petitioner contended that inasmuch as P.W.2, the mother of the landlady supported the case that the premises bearing door No.21, Barracks Road, Madras 600003 in which she has been residing, belongs to P.W.2 and the same has been occupied by the landlady by paying rent of Rs.500/- to P.W.2 and as such, it is clear that the landlady does not own any other residential premises excepting that of the petition residential premises. As regards the ownership of the premises bearing door No.21, Barracks Road, Madras 600003, which according to the tenant belongs to the landlady, the learned counsel for the revision petitioner by referring the Ex.P-1 property tax demand notice, Ex.P-7, registered sale deed and Ex.P-8 true extract from the register of assessment, stated that P.W.2, the mother of the landlady purchased the said property as early as on 9.3.1959. As regards the fact that the landlady was operated in her stomach, the learned counsel for the revision petitioner pointed out that it is clear from Ex.P-2 discharge summary certificate of the Government M.H. Hospital that the landlady was operated on 3.9.1986 for removing the fundal fibroid of 2 x 3" diameter and also another fibroid measuring 2" x 1" in diameter and for the said purpose she had been admitted in the hospital on 19.8.1986 and was discharged on 16.9.1986 and as such, after the operation, it is difficult for the landlady to climb stairs to reach the upstairs portion bearing door No.21, Barracks Road, Madras 600003 where she has been residing at the time of Rent Control Original Petition and which belongs to her mother, P.W.2. As regards the non-examination of the landlady, the learned counsel for the revision petitioner argued that such non-examination of landlady is not fatal in view of the fact that her husband was brought into the witness box and she proved that the requirement as sought for is bona fide by examining her husband as P.W.1 and also her mother as P.W.2, besides Ex.P-2. The learned counsel for the revision petitioner has relied on the decision of this Court reported in 1983-II M.L.J. 354 (P.S.Palaniappa Chettiar – vs. - A.Simen George), in which this Court has observed:- "It is not necessary that the landlord alone should go into the box and depose about the bona fide requirement. Even his own agent or anybody on his behalf whose evidence is cogent, convincing and trustworthy can be taken on its face value either for upholding or for rejecting the case of the landlord. Under the circumstances, the failure on the part of the landlord to go into the box and examine himself cannot be taken as a ground for non upholding his claim for bona fide requirement of the demised premises." Such view is affirmed by this Court in the decision reported in 1997-3, Law Weekly 141 (S.Mariappan – vs. - Kadar Beevi). In the decision reported in (2001)1 M.L.J. 759 (The South Indian Bank Limited – vs. - Saroja Govindarajan), this court has observed:- "Tamil Nadu Buildings (Lease and Rent Control) Act, Section 10(3)(a)(iii) – Petition for eviction by landlady on the ground of her bona fide requirement for non-residential purpose. Proof required for establishing bona fides. In the decision reported in (2001)1 M.L.J. 759 (The South Indian Bank Limited – vs. - Saroja Govindarajan), this court has observed:- "Tamil Nadu Buildings (Lease and Rent Control) Act, Section 10(3)(a)(iii) – Petition for eviction by landlady on the ground of her bona fide requirement for non-residential purpose. Proof required for establishing bona fides. That portion of the demised premises has been let out to the daughter of landlady free of rent does not negative bona fide requirement of landlady." 12. The learned counsel for the respondent/tenant argued that the requirement of the petition premises for own use and occupation of the landlady is not bona fide, in that she had been residing in the upstairs portion bearing door No.21, Barracks Road, Madras 600003 which also belongs to her and even assuming that the said portion belongs to her mother, P.W.2, she cannot seek the petition premises for her own use and occupation. The learned counsel for the tenant/respondent further argued that the landlady has not proved that she was operated in her stomach by examining herself. The learned counsel for the respondent also relied on the decision reported in 2000-I Law Weekly, 778 (T.Sivasubramaniam and others – vs. - Kasinath Pujari and others), in which, the Apex Court has ruled in paragraph 3:- "The averments in this case show that the landlord sought the possession of the premises by evicting the tenant merely on the ground that he desires to live independently away from his father. The question that arises for consideration is, whether mere desire to live separately from the father would constitute need or requirement for the premises." 13. As rightly argued for the revision petitioner, it is clear from Ex.P-7 registered sale deed dated 9.3.1959 that P.W.2, mother of the landlady purchased the premises bearing door No.21, Barracks Road, Madras 600003 and as such, she is the owner of the said premises. Further, it is P.W.2, the mother of the landlady who is paying property tax to the said property as can be seen from Exs.P-1 and P-8. 14. It is not in dispute that the revision petitioner has been residing in the upstairs portion bearing door No.21 Barracks Road, Madras 600003 which belongs to her mother P.W.2. Further, it is P.W.2, the mother of the landlady who is paying property tax to the said property as can be seen from Exs.P-1 and P-8. 14. It is not in dispute that the revision petitioner has been residing in the upstairs portion bearing door No.21 Barracks Road, Madras 600003 which belongs to her mother P.W.2. According to the case of the landlady, she has been residing in the said portion by paying rent of Rs.500/- to her mother P.W.2 which is supported by P.W.2 and even assuming that the landlady is not paying any rent and has been in occupation of the said portion free of rent on that ground, the requirement of the petition residential premises for her own use and occupation cannot said to be mala fide. The tenant is in occupation of the petition residential premises being the ground floor portion and in the first floor portion, the landlady's sister has been in occupation by paying rent to the landlady. 15. Though the landlady has not examined herself, by marking Ex.P-2 discharge summary of Government M.H.Hospital, she has established that she was operated in her stomach on 3.9.1986 for removing the fundal fibroid of 2 x 3" diameter and also another fibroid measuring 2" x 1" in diameter and for the said purpose she had been admitted in the hospital on 19.8.1986 and was discharged on 16.9.1986 and as such, after operation, it is difficult to the landlady to climb stairs to reach the upstairs portion bearing door No.21, Barracks Road, Madras 600003 where she had been residing at the time of filing of the Rent Control Original Petition, which portion belongs to her mother P.W.2. According to the revision petitioner, that portion is asbestos sheet roof covered and therefore the heat is unbearable. Even assuming, it is not so, the landlady is justified in seeking the petition residential premises for her own use and occupation, in that she is not owning any other residential premises in the city of Chennai. She also caused lawyer notice under Ex.P-4 on 24.6.1989 seeking the petition residential premises for her own use and occupation, since she finds it difficult to climb the stairs after operation in her stomach. She also caused lawyer notice under Ex.P-4 on 24.6.1989 seeking the petition residential premises for her own use and occupation, since she finds it difficult to climb the stairs after operation in her stomach. Therefore, the requirement of the petition residential premises being the ground floor, for own use and occupation by the landlady is bona fide, in that she is not owning any other residential premises and that she was operated in her stomach for removing the fundal fibroid of 2 x 3" diameter and also another fibroid measuring 2" x 1" in diameter as early as on 3.9.1986 as can be seen from Ex.P-2 discharge summary record. Though the learned Rent Controller recorded finding accordingly, the learned Rent Control Appellate Authority of an erroneous approach to the facts, incorrectly recorded finding that the requirement is not bona fide, in view of the fact that the landlady did not get into the witness box by examining herself and that she failed to examine the doctor who gave discharge summary record. The landlady by examining her husband as P.W.1 and her mother as P.W.2, has clearly proved that the premises bearing door No. 21 Barracks Road, Madras 600003 belongs to her mother P.W.2 and the upstairs portion wherein she has been residing, is not suitable to her after the operation performed to her in her stomach and the petition premises bearing door No.23, Barracks Road, Madras 600003, being situated in ground floor, is required bona fide for her own use and occupation. Therefore, the finding of the learned Rent Control Appellate Authority reversing the order of eviction on the ground of own use and occupation by the landlady is to be set aside. 16. C.R.P.No.3069 of 1998:- In the result, this Civil Revision Petition is dismissed. The judgment and decree dated 18.4.1995 made in R.C.A.No.449 of 1993 on the file of the Rent Control Appellate Authority (VIII Judge, Small Causes Court), Madras are confirmed. 17. C.R.P.No.710 of 2003:- In the result, this Civil Revision Petition is allowed with cost. The judgment and decree dated 5.12.1994 made in R.C.A.No.284 of 1993 on the file of the VII Judge, Small Causes Court, Madras are set aside restoring the eviction order dated 29.4.1992 made in R.C.O.P.No.2244 of 1989 on the file of the XI Judge, Small Causes Court, Madras. The judgment and decree dated 5.12.1994 made in R.C.A.No.284 of 1993 on the file of the VII Judge, Small Causes Court, Madras are set aside restoring the eviction order dated 29.4.1992 made in R.C.O.P.No.2244 of 1989 on the file of the XI Judge, Small Causes Court, Madras. At the request of the learned counsel for the respondent/tenant, time for eviction three months is granted on the respondent/tenant files undertaking affidavit within 10 days that the respondent/tenant will vacate from the petition mentioned premises without resorting to execution proceedings, failing which, no time for eviction.