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2005 DIGILAW 1043 (MAD)

S. Bhuvaneswari v. S. Gowthaman Bhaskaran

2005-07-11

S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- The revision petitioner is a landlady, who was unsuccessful before the Rent Controller and the Rent Control Appellate Authority, Court of Small Causes, Chennai. 2. The case in brief is as follows:- The landlady filed a rent control original petition in RCOP No.2879 of 1995 under section 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 read with Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974 (hereinafter referred to as 'the Act') for eviction of the respondent from the residential flat No.5 on the southern side in the second floor of complex of residential flats known as G.S.Flats bearing door No.25-A, Second Street, East Abhiramapuram, Mylapore, Madras-4. The said flat is required for her own use and occupation. The flat was purchased by the petitioner under a registered Sale Deed dated 12.07.1995 from Mrs.Nandhini Bharath. The respondent became a tenant under the previous owner Mrs.Nandhini Bharath in September 1987 on a monthly rent for Rs.1,200/- excluding contributory charges payable to the Association for the maintenance of the common amenities. After purchase, the landlady duly intimated to the tenant about the transfer of the title to the petition premises and he was called upon to attorn the tenancy. Thereafter, the respondent continued to reside in the petition premises as a statutory tenant under the petitioner at the same rent of Rs.1,200/- per month. The landlady is a bank employee and the family consists of her husband, employed as an Executive in a Public Limited Company and a school going daughter. The landlady and members of the family do not own residential building excepting the petition mentioned flat and the petitioner and her family were residing in a rented flat at No.93-F, Sowbhagya Colony, K.K.Nagar, Madras-78. The landlord of the said premises requested them to vacate. They moved to another rented premises on 01.09.1995 at plot No.257 (First floor), Alagirisamy Salai, K.K.Nagar, Madras-78. The landlady sent a letter dated 08.09.1995 and then the reminder letter on 11.10.1995 that the premises was bona fide required for her own occupation. The respondent / tenant replied on 03.11.1995. The respondent is a journalist attached to the nationally reputed newspaper. The landlady filed a separate petition for fixation of fair rent. 3. The landlady sent a letter dated 08.09.1995 and then the reminder letter on 11.10.1995 that the premises was bona fide required for her own occupation. The respondent / tenant replied on 03.11.1995. The respondent is a journalist attached to the nationally reputed newspaper. The landlady filed a separate petition for fixation of fair rent. 3. The petition was resisted by the respondent by filing counter stating that the family of the landlady owns another property at Madras and the requirement of the petitioner is not bona fide. The landlady purchased the property only with a view to vacate the respondent at any cost and to hike up the rent. The landlady filed a separate petition for fixation of fair rent. She is employed in a bank at Parrys, Madras and her husband is a Corporate Executive, who is entitled to a flat at the company's expenses. Her daughter is studying in Padma Seshadri School at K.K.Nagar. 4. Before the Rent Controller, the landlady examined herself as examined as P.W.1 and marked Exs.P-1 to P-10. The tenant was examined as R.W.1 and on his side, Ex.R-1 was marked. The Rent Controller, after considering the evidence both oral and documentary on either side, not satisfied with the requirement of the landlady, dismissed the petition. In the appeal preferred by the landlady, the Rent Control Appellate Authority confirmed the order of the Rent Controller and dismissed the appeal. Aggrieved against the same, the landlady has filed this revision petition. 5. Heard both sides. 6. The learned counsel for the revision petitioner / landlady has argued that the petition flat was purchased by the landlady, a bank employee, and her family consists of her husband, who is employed as an executive in the Murugappa Groups of Companies, and her daughter is studying at a school in K.K.Nagar. He further submitted that the landlady does not own any other flat excepting the petition flat purchased by her under a registered sale deed Ex.P-1 dated 12.07.1995 from the previous owner Mrs.Nandhini Bharath, under whom, the respondent, who is a journalist attached to the Nationally reputed newspaper, became a tenant in the year 1987. The respondent / tenant also attorned the tenancy to her and has been paying the monthly rent of Rs.1200/- as also paid to the previous owner. The respondent / tenant also attorned the tenancy to her and has been paying the monthly rent of Rs.1200/- as also paid to the previous owner. It is also argued by the learned counsel that the landlady is now temporarily occupying the premises bearing door No.257, First Floor, Alagirisamy Salai, K.K.Nagar, Madras-78. It is further argued that though the tenant has agreed to vacate and sought time, he has not done so. The learned counsel for the revision petitioner also submitted that the concurrent findings of the Rent Controller and the Rent Control Appellate Authority being erroneous have to be set aside. Further he argued that it is not for the tenant to dictate as to which of the premises the landlady can seek possession for own occupation. 7. Learned counsel relied on the decision reported in Vijayan ..vs.. M/s.Kalaimagal Accoaunt Book Shop (2000) 2 M.L.J.495), wherein this Court held that the concurrent findings of the authorities below can be set aside by this Court if the authorities below have not taken into consideration the law declared by this Court and the Honourable Supreme Court, and finding is only based without looking into the evidence and such a decision can never be said as "in accordance with law". 8. Learned counsel for the respondent / tenant submitted that both the authorities below namely, Rent Controller and Rent Control Appellate Authority came to the conclusion that the requirement of the landlady is mala fide in view of the fact that the landlady has purchased the petition flat only with a view to evict the respondent and to hike the rent. Learned counsel for the respondent / tenant submitted that both the authorities below namely, Rent Controller and Rent Control Appellate Authority came to the conclusion that the requirement of the landlady is mala fide in view of the fact that the landlady has purchased the petition flat only with a view to evict the respondent and to hike the rent. Further, the learned counsel also argued that the petitioner has not come to court with clean hands since she was not residing in the rented premises at the time when notice under Ex.P-2 dated 24.07.1995 was caused to the respondent and in fact, the said premises bearing door No.93F, Sowbhagya Colony, K.K.Nagar, Madras-78 was owned by her and the same was sold by her only on 25.08.1995 to one Kalyanaraman, who has given the letter under Ex.P-4 dated 01.09.1995 stating that he has taken possession of the said flat and therefore, according to the learned counsel, flat was owned by the landlady till such time which was sold by her on 25.08.1995 to R.Kalyanaraman and in that view, the requirement of the petition flat for her own use and occupation is without bona fide. The learned counsel also argued that inasmuch as the concurrent findings have been rendered by the Rent Controller and Rent Control Appellate Authority and the intention of the landlady is mala fide, such finding of facts cannot be interfered with by this Court. 9. The rent control petition was filed on 23.11.1995. The landlady was owning the flat bearing door No.93F, Sowbhagya Colony, K.K.Nagar, Madras-78 in view of purchase as per the sale deed dated 12.05.1993 from one Saraswathi and the said flat was sold to R.Kalyanaraman on 25.08.1995, who took possession of the same under the letter Ex.P-4 dated 01.09.1995. The landlady purchased the petition flat as per Ex.P-1 sale deed dated 12.07.1995 and at the time of purchase from Mrs.Nandhini Bharath, it was occupied by the respondent as a tenant from 1987 under the previous owner. Therefore, after the sale of the flat bearing door No.93F, Sowbaghya Colony, K.K.Nagar, Madras-78 to one R.Kalyanaraman on 25.08.1995, the landlady was not owning any other building excepting the petition mentioned property under Ex.P-1 dated 12.07.1995. Therefore, after the sale of the flat bearing door No.93F, Sowbaghya Colony, K.K.Nagar, Madras-78 to one R.Kalyanaraman on 25.08.1995, the landlady was not owning any other building excepting the petition mentioned property under Ex.P-1 dated 12.07.1995. As per the agreement Ex.P-5 dated 31.08.1995, the landlady's husband Sankar Narayan became the tenant under one Ramanathan in respect of the premises bearing door No.257, Alagirisamy Salai, K.K.Nagar, Madras-78 on a monthly rent of Rs.2750/- inclusive of the charges for amenities and another sum of Rs.250/- as rent for garage. Therefore, after vacating the premises bearing No.93F, Sowbaghya Colony, K.K.Nagar, on 01.09.1995 the landlady occupied the premises at No.257, Alagirisamy Salai, K.K.Nagar, as per the agreement entered between her husband and one Ramanathan under Ex.P-5. As such, the landlady was not in occupation of the building owned by her. After the sale of the said flat, excepting the petition flat purchased on 12.07.1995 under Ex.P-1, she was in occupation of the rented premises with effect from 01.09.1995 bearing door No.257, Alagirisamy Salai, K.K.Nagar, Madras-78. Though it is stated by the tenant that the landlady is also owning another building, no satisfactory evidence has been let in on the side of the tenant in this aspect. In fact, it is admitted by the tenant in his evidence that he is aware of the fact that at the time when the rent control original petition was filed, the landlady was occupying the premises bearing door No.257, Alagirisamy Salai, K.K.Nagar as a tenant. Merely because the husband of the landlady is employed in Murugappa Groups of Companies and that he is entitled for rental accommodation, it cannot be said that the requirement of the petition flat by the landlady is without bona fide. He has also submitted that since the daughter of the landlady is studying in Padma Seshadri School at K.K.Nagar, the requirement of the petition flat at Abiramapuram is without bona fide. In that event, her daughter can go to the school or college by school bus or college bus or any mode of transport. It is well settled that the tenant cannot dictate as to which of the portion of the premises the landlady or landlord can seek for own occupation. In that event, her daughter can go to the school or college by school bus or college bus or any mode of transport. It is well settled that the tenant cannot dictate as to which of the portion of the premises the landlady or landlord can seek for own occupation. In fact, in the letter dated Ex.P-9 dated 03.11.1995, the respondent only informed that he will not be able to move out of the flat immediately since his son is studying at a local school and it is impossible for shifting the school immediately which shall be very inconvenient for his son and that he is also prepared to pay a higher rent. In his evidence, it is admitted that he wanted time to vacate the petition flat till July 1998, but the landlady gave time till May 1998. 10. The Rent Controller and the Rent Control Appellate Authority have not considered the evidence properly adduced on either side; more particularly, the evidence let in by the landlady that she is not in occupation of any other building owned by her in the City of Madras and that she is only in a rented premises bearing door No.257 Alagirisamy Salai, which fact was also admitted by the tenant in his evidence. It has been held that in umpteen number of decisions by this Court as well as Hon'ble Supreme Court that if the requirement of the landlady or landlord is bona fide, possession of the premises can be ordered. Therefore, the concurrent findings rendered by the Rent Controller as well as the Rent Control Appellate Authority being erroneous in not considering the evidence let in on both sides and without considering the law declared by this Court as well as Hon'ble Supreme Court, such findings have to be set aside. The landlady has clearly established that the requirement of the petition flat for own use and occupation by her and family members is bona fide. In that view, the landlady is entitled for eviction of the respondent / tenant from the petition flat bearing door No.5, G.S.Flats bearing door No.25-A, Second Street, East Abhiramapuram, Mylapore, Madras-4 and the orders of the Rent Controller as well as Rent Control Appellate Authority are liable to be set aside. 11. In that view, the landlady is entitled for eviction of the respondent / tenant from the petition flat bearing door No.5, G.S.Flats bearing door No.25-A, Second Street, East Abhiramapuram, Mylapore, Madras-4 and the orders of the Rent Controller as well as Rent Control Appellate Authority are liable to be set aside. 11. In the result, the revision petition is allowed and the orders of the Rent Controller as well as Rent Control Appellate Authority are set aside. No costs.