Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 500 (MAD)

Tmt. J. Vijayalakshmi v. Mr. Giridhara Gopal

2005-03-22

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition, filed under Sec.25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the order of the Principal Subordinate Judge, Dindigul dated 08.11.2002 in R.C.A.No.20 of 1999, as stated therein.) This Civil Revision Petition is preferred against the Order of the Rent Control Appellate Authority / Principal Subordinate Judge, Dindigul dated 08.11.2002 in R.C.A.No.20 of 1999 reversing the fair and decretal order of the Rent Controller (Principal District Munsif), Dindigul dated 01.10.1999 in R.C.O.P.No.25 of 1997. The Petition filed by the Revision Petitioner / Landlady under Sec.10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the "Rent Control Act") for additional accommodation was dismissed by the Rent Control Appellate Authority. The Revision Petitioner is the Landlady. 2. The Tenanted Building is Door No.5 in Big Bazar Street (bghpa fil tPjp) Dindigul Town. Case of the Revision Petitioner / Landlady is that the Petition Property and Door No.6 (situated on the South and Eastern Side of Door No.5) belonged to one Umadevi. The Revision Petitioner / Landlady has purchased the Petition mentioned property from the said Umadevi and others by Sale Deed dated 29.09.1995 for Rs.4,85,000/-. The Respondent / Tenant is a Tenant in Door No.5. He is running Stationery Stores. In Door No.6, the Revision Petitioner / Landlady is in occupation of the same as Owner. She and her family members are doing the business in Perfumes and Raw-materials for Bakery, Sauce and others. Without any reason, the Respondent / Tenant has filed R.C.O.P.No.54 of 1995 and deposited the rent for Door No.5 into the Court. The space in Door No.6 is not sufficient for carrying on the business by the Landlady. The Door No.6 is about 4 ½ Feet breadth - North South, which is used as the Pathway. The portion in Door No.6 is highly congested. The perfumes and other business goods are to be dumped in Door No.6. The available space in Door No.6 is absolutely insufficient to carry on the business of the Landlady. More space would be required by the Petitioner / Landlady. Hence, the Petition was filed under Sec.10 (3)(c) of the Rent Control Act for additional accommodation. 3. Denying the bonafide requirement of the Landlady, the Respondent / Tenant has filed the Counter Statement stating that his Father had taken the premises under lease in the year 1962. More space would be required by the Petitioner / Landlady. Hence, the Petition was filed under Sec.10 (3)(c) of the Rent Control Act for additional accommodation. 3. Denying the bonafide requirement of the Landlady, the Respondent / Tenant has filed the Counter Statement stating that his Father had taken the premises under lease in the year 1962. After his Father, the Respondent / Tenant is running Stationery Stores in Door No.6. Vendor – Umadevi and her Husband had executed the Sale Deed in 1995 in favour of the Petitioner / Landlady only to threaten the Respondent / Tenant to evict him. Hence, the Respondent / Tenant has filed O.S.No.751 of 1995 on the file of the District Munsif Court, Dindigul for Permanent Injunction, restraining the Landlady from interfering with his possession and occupation. The Respondent / Tenant has also filed R.C.O.P.No.54 of 1995 for depositing the rent payable to Door No.5, the Respondent is regularly depositing the rent in the Court. The Petitioner / Landlady and her family Members are owning yet another shop in Big Bazaar Street. That apart, they are owning Eight more shops in Nanniammal Pettai. Since the Petitioner / Landlady owns other shops, there is no bonafide requirement in filing of the Petition for additional Accommodation. 4. Before the Rent Controller, onbehalf of the Petitioner / Landlady, Exs.P.1 to P.9 have been marked. P.Ws.1 and 2 examined. Onbehalf of the Respondent, Ex.R.1-Rent Receipts issued by the previous Predecessor in Title viz., Saraswathi Ammal was marked. The Commissioner's Report and Plan were marked as Exs.C.1 and C.2. Upon consideration of the evidence, learned Rent Controller accepted the case of the Revision Petitioner and found bonafide requirement of the Petitioner / Landlady for additional accommodation. Finding that the additional accommodation is very much required for carrying on business by the Petitioner / Landlady, the Rent Controller allowed the Petition under Sec.10(3)(c) of the Rent Control Act and ordered Eviction. 5. Aggrieved over the order of Eviction, the Respondent / Tenant has preferred appeal before the Appellate Authority / Principal Subordinate Judge, Dindigul in R.C.A.No.20 of 1999. The learned Appellate Authority found that in comparison to the total extent and the extent in Door No.6, the leased out area in Door No.5 is very small portion. The Rent Control Appellate Authority reversed the order of Eviction finding that the bonafide requirement is not proved by the Petitioner / Landlady. The learned Appellate Authority found that in comparison to the total extent and the extent in Door No.6, the leased out area in Door No.5 is very small portion. The Rent Control Appellate Authority reversed the order of Eviction finding that the bonafide requirement is not proved by the Petitioner / Landlady. On Ex.C.1, learned Rent Control Appellate Authority has expressed doubts on the possibility of the goods being dumped to create an impression of inadequacy of the space. Pointing out the evidence that the Landlady has Eight other shops in Nanniammal Pettai, and another shop in Big Bazaar Street (bghpa fil tPjp) Dindigul Town, where the demised property is located, learned Appellate Authority found that the additional requirement is not bonafide. From filing of the Petition in R.C.O.P.No.26 of 1999, learned Rent Control Appellate Authority also inferred that the intention of the Landlady is only to collect more rent and that there is no bonafide in the additional requirement. On those findings, the Appeal was allowed, reversing the order of Eviction. 6. As against the order of Rent Control Appellate Authority, the Revision Petitioner / Landlady has preferred this Revision. Learned counsel for the Revision Petitioner has submitted that the findings of the Appellate Authority regarding the ownership of the Landlady in Nanniammal Pettai and Big Bazar Street (bghpa fil tPjp) is irrelevant for determining the issues involved in the Petition. Relying upon the decision reported in Hotel De-Broadway ..Vs.. M/S. Snow White Industrial Corporation ( 1997 (I) L.W. 421 ) learned counsel has submitted that mere inconvenience of the Tenant cannot deprive Landlady to have the additional accommodation. It is further submitted that merely because alternative shops are available to the Landlady, the Tenant cannot dictate the terms to the Landlady. Assailing the findings of the Appellate Authority, it is submitted that the reasoning of the Appellate Authority that the goods might have been dumped to create impression of inadequacy of space is based on the conjecture bordering on perversity and unsustainable. 7. Countering the arguments of the Revision Petitioner/Landlady, learned counsel for the Respondent/Tenant has supported the findings of the Appellate Authority. It is submitted that the main intention of the Revision Petitioner/Landlady is only to collect more rent. Drawing the attention of the Court to Exs.C.1 and C.2, it is submitted that mere dumping of Articles cannot lead to the conclusion of bonafide requirement. It is submitted that the main intention of the Revision Petitioner/Landlady is only to collect more rent. Drawing the attention of the Court to Exs.C.1 and C.2, it is submitted that mere dumping of Articles cannot lead to the conclusion of bonafide requirement. It is further submitted that the conduct of the Revision Petitioner / Landlady in filing R.C.O.P.No.26 of 1999 for fixation of fair rent was rightly taken note of by the Rent Control Appellate Authority. Pointing out the Eight shops owned by Revision Petitioner/ Landlady in Nanniammal Pettai and yet another Shop in Big Bazar Street within a distance of 200 feet from the Tenanted building, it is submitted that when sufficient alternative accommodation is available to the Landlady, the comparative hardship caused to the Tenant is more and that there cannot be order of eviction and there is no reason warranting interference in the order of the Rent Control Appellate Authority. In support of his contention, learned counsel for the Respondent/Tenant has relied upon number of decisions. 8. Upon consideration of the submissions by both sides, orders of the Authorities below, evidence and materials on record, the following points arise for consideration in this Revision Petition. i.In the facts and circumstances of the case, whether the Rent Control Appellate Authority was right in finding that there is no bonafide requirement for additional accommodation? ii.Whether the appreciation of evidence by the Rent Control Appellate Authority is unreasonable and perverse warranting interference exercising revisional jurisdiction under Sec.25 of the Rent Control Act. 9. In exercising the revisional jurisdiction under Sec.25 of the Act, the High Court would be slow to interfere. The finding of fact arrived at by the Appellate Authority cannot be lightly interfered with by the High Court acting like a Court of Appeal and re-appreciating the evidence. In support of his contention that the finding of fact arrived at by the Appellate Authority cannot be lightly interfered with, learned counsel for the Respondent / Tenant has relied upon the decision of the Supreme Court reported in P.M.Punnoose ..Vs.. In support of his contention that the finding of fact arrived at by the Appellate Authority cannot be lightly interfered with, learned counsel for the Respondent / Tenant has relied upon the decision of the Supreme Court reported in P.M.Punnoose ..Vs.. K.M.Munneruddin And Others (2003 (3) C.T.C. 348) wherein it was held "....Revision – Scope of Jurisdiction of High Court – Jurisdiction conferred on High Court under Section 25 of Act is not narrow as one under Sec.115 of Code of Civil Procedure – Nevertheless finding of fact arrived at by appellate authority cannot be lightly interfered with by High Court acting like Court of Appeal and re-appreciating evidence – Order of eviction passed by High Court was set aside and order passed by Appellate Authority was restored...." In the light of the above ratio, it is to be seen whether the findings of fact by the Rent Control Appellate Authority suffers from erroneous approach and perversity warranting interference. 10. The Tenanted premises – Commercial Shop relates to Dindigul Town Big Bazar Street(bghpa fil tPjp) Door No.5 in T.S.No.404 and 405 North South --- 10 feet East West --- 20 feet Door Nos.5 and 6 form part of one Building and are one integral Unit. The measurement of Door No.6 is as follows:- In the front Entrance North South --- 4.1 feet East West --- 95.1 feet On the Eastern Side / Tiled Portion (Xl;L jhH;thuk;) East West --- 8. 10 feet North South --- 13 feet Further West – one Room East West --- 26.5 feet North South --- 13.1 feet 11. Thus, the portion in Door No.6 is comparatively bigger in area. Door No.5 measuring North South 10 feet, East West 20 feet is comparatively very small in area. Learned Rent Control Appellate Authority was right in observing that the area of tenanted Building – Door No.5 is very small in proportion in comparing the Door No.6. The findings of the Rent Control Appellate Authority, "....vdnt kD brhj;jpd; msit jw;nghJ kDjhuhpd; RthjPd mDgtj;jpy; ,Ue;J tUfpd;w fpHf;F filrpapy; xU miwa[k; mjw;F mLj;jhh;nghy; eLg;gFjpapy; xU miwa[k; bfhz;l fpHnky; 95/1 mo ePsKs;s brhj;Jld; xg;gpl;Lg; ghh;f;Fk;nghJ kD brhj;J kpf kpff; Fiwe;j mst[ bfhz;l gFjp vd;gjpy; ve;jtpj Iag;ghLk; ,y;iy/ kD brhj;jpd; msitf; fhl;oYk; TLjy; mst[ bfhz;l miwfs; jw;nghJ kDjhuhpd; RthjPd mDgtj;jpy; ,Ue;J bjspthf bjhpa tUfpd;wJ...." does not suffer from any unreasonableness. The learned Rent Control Appellate Authority was right in finding that in comparing the total extent in Door No.6, the area of Tenanted premises is very small. 12. Before adverting to the evidence, it is necessary to trace the prior Title of previous owners. Door Nos.5 and 6 originally belonged to one Arjunan Chettiar. Father of Respondent / Tenant had become Tenant under the said Arjunan Chettiar even from the year 1962. He was running a Maligai Shop under the name and style of "Sri Abirami General Stores". The said Arjunan Chettiyar had executed a Registered Will dated 12.09.1962 bequeathing Door Nos.5 and 6 and other properties in favour of his Wife - Saraswathi Ammal. Father of Respondent continued to be the Tenant under the said Saraswathi Ammal. In 1984, the Respondent has become Tenant under the said Saraswathi Ammal. Respondent was running a Stationery Stores under the name and style of "Sri Vidya Stationery General". Ex.R.1-series is the Rent Receipts issued by the said Saraswathi Ammal to the Respondent. 13. Settlement Deed in favour of Umadevi dated 24.07.1987:- The said Saraswathi Ammal executed a Settlement Deed in favour of one Umadevi and her Children by the Settlement Deed dated 24.07.1987. The Respondent was paying the rent to Saraswathi Ammal and to Umadevi. The said Umadevi is the own Sister of the Respondent / Tenant. 14. Sale Deed in favour of Petitioner / Landlady dated 29.09.95: The said Umadevi and her Husband had sold Door Nos.5 and 6 and other settled properties to the Revision Petitioner / Landlady by the Sale Deed dated 29.09.1995. 15. Thus, it is clear even before purchase of the Property by the Revision Petitioner/ Landlady, the Respondent and his father have been in occupation of Door No.5 as Tenants for number of years. The Respondent/Tenant and his Father have been carrying on business in Door No.5. Similarly, family of Petitioner/Landlady were also Tenants in Door No.6 even from 1987 and carrying on business. The Petitioner/Landlady has purchased the Property in 1995. Within two years thereafter i.e. on 04.06.1997, the Revision Petitioner has filed the Application under Sec.10(3)(c) of the Rent Control Act strangely seeking for additional accommodation on the ground of inadequacy of space and expansion of their space. Learned Rent Control Appellate Authority has rightly pointed out that there is no evidence showing the expansion of business of the Petitioner/Landlady. Within two years thereafter i.e. on 04.06.1997, the Revision Petitioner has filed the Application under Sec.10(3)(c) of the Rent Control Act strangely seeking for additional accommodation on the ground of inadequacy of space and expansion of their space. Learned Rent Control Appellate Authority has rightly pointed out that there is no evidence showing the expansion of business of the Petitioner/Landlady. Excepting the evidence of P.W.1-Balaji, Son of the Revision Petitioner/Landlady, who was only aged 26 years at the time of his evidence in 1999, absolutely, there is no evidence regarding the business turn over. The filing of Eviction Petition within two years after purchase assumes significance in the light of other disputes and litigations between the parties. 16. O.S.No.751 of 1995:- After purchase of the Property by Sale Deed from Umadevi, the Revision Petitioner/Landlady has not informed the Respondent/Tenant, calling upon him to attorn the Tenancy. On the other hand, the Revision Petitioner is alleged to have taken steps for forcibly vacating the Respondent/Tenant. Under such circumstances, the Respondent / Tenant has filed O.S.No.751 of 1995 on the file of District Munsif Court, Dindigul restraining the Landlady from vacating him otherwise than under due process of law. The said Suit has been dismissed. The Appeal is said to be pending. 17. R.C.O.P.No.54 of 1995:- The Respondent / Tenant has filed this Petition for depositing the Rent into the Court. Onbehalf of the Revision Petitioner, it is contended that the Respondent has filed R.C.O.P.No.54 of 1995 without any reason. There is no evidence showing issuance of Notice to the Respondent by the Landlady / Purchaser calling upon him to attorn the Tenancy. The Respondent had every reason to doubt that the Purchaser / Landlady might evict him. Under such circumstances, to protect his rights ensuing under the Rent Control Provisions, the Respondent / Tenant has rightly filed R.C.O.P.No.54 of 1995 for deposit of Rent into the Court. 18. R.C.O.P.No.26 of 1999:- Even in the Petition for Eviction on the ground of additional accommodation, the Revision Petitioner / Landlady has alleged that the tenanted Building – Door No.5 is located in Big Bazar Street and that it would fetch a fair rent of not less than Rs.2000/-. Pointing out the same, the Respondent has pleaded in the Counter Statement that the intention of the Revision Petitioner / Landlady is only to collect higher rent. Pointing out the same, the Respondent has pleaded in the Counter Statement that the intention of the Revision Petitioner / Landlady is only to collect higher rent. After the Respondent filed the Counter Statement in 1999, the Revision Petitioner / Landlady has filed a Petition under Sec.4 of the Rent Control Act for fixation of fair rent at the rate of Rs.2095/-. Cognizance is to be taken of the subsequent developments. When the Revision Petitioner / Landlady has filed application for enhancement of rent by fixing the fair rent at Rs.2095/-, considerable dues arise on the requirement of the Landlady for additional accommodation. The finding of the Rent Control Appellate Authority "...vdnt kDjhuhpd; kDtpy; kD brhj;Jf;Fhpa jw;nghija thlif epytuk; gw;wp Fwpg;gpl;oUg;gJk; kDjhf;fy; bra;ag;gl;ljw;F gpd;dh; ,uz;L Mz;Lfs; fHpj;J v/k/rh/M/2?y; fz;l kDit epaha thlif eph;zak; bra;af;nfhhp jhf;fy; bra;jpUg;gJk; kD brhj;Jf;F TLjy; thlif bgwntz;Lbkd;W vz;zKk; kDjhuUf;F cs;sJ vd;gijf; fhl;Ltjhf ,Uf;fpwJ..." is in proper appreciation of facts and circumstances. The above findings do not suffer from unreasonableness or erroneous approach. 19. The Commissioner has visited the Door Nos.5 and 6. In his Report – Ex.C.1, the Commissioner has stated that the goods have been dumped and the space is congested. Ex.P.7-Photographs are produced by the Revision Petitioner/Landlady to show that the available space in Door No.6 is insufficient for carrying on the business. On the Commissioner's Report, learned Rent Control Appellate Authority has observed that the goods might have been dumped in Door No.6 in such a manner to create an impression in the mind of the visiting Commissioner as if the Space is inadequate and that it is difficult for the Landlady to carry on the business. This finding of the Appellate Authority is very much assailed on the ground that it is based on surmises and not right in presuming that the Articles might have been dumped to create an impression of insufficient of space. No doubt, on Ex.C.1-Commissioner Report, the Rent Control Appellate Authority seems to have proceeded on the presumptive footing that the goods might have been dumped in such a manner to create an impression of inadequacy of space to carry on the business. But, that approach cannot be said to be suffering from perversity warranting interference. No doubt, on Ex.C.1-Commissioner Report, the Rent Control Appellate Authority seems to have proceeded on the presumptive footing that the goods might have been dumped in such a manner to create an impression of inadequacy of space to carry on the business. But, that approach cannot be said to be suffering from perversity warranting interference. It is to be noted that even if the space is insufficient, the Revision Petitioner / Landlady and their family members have been carrying on the business in Perfumes and in Raw-materials for Bakery, Sauce and others in the same place for several years from 1987. To say that the space in Door No.6 is inadequate within two years of purchase, raises doubts on the requirement for the additional accommodation. 20. The Proviso to Sec.10(3)(c) of the Rent Control Act reads thus:- "Provided that, in the case of an application under Clause (c), the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the Landlord." This Proviso is applicable in the case of an application under Clause (c) of Section 10(3) of the Act, where the Landlord had sought eviction of a part of the building, whether residential or non-residential, as the case may be. The question whether the balance of convenience is in favour of the Landlord or Tenant is one of facts. The substance of the provision is that the Court should take into account the possible hardship that would ensure to the tenant if he were to be evicted and if the Court were to find in a proper case that while the hardship resulting to the Tenant would be considerable and the advantage securing to the Landlord would be little or small, the application could be rejected. 21. Admittedly, the extent of Door No.5 is very small, measuring North South 10 feet; East West 20 feet. In the same Big Bazar Street, the Revision Petitioner / Landlady owns another Shop, which is at a distance of about only 200 feet away from the Petition property. That shop has been rented to another Tenant. In Nanniammal Pettai, the Revision Petitioner / Landlady and her family are owning Eight shops in a Commercial Complex. P.W.1-Balaji, Son of the Landlady has admitted owning of Eight shops in Nanniammal Pettai. That shop has been rented to another Tenant. In Nanniammal Pettai, the Revision Petitioner / Landlady and her family are owning Eight shops in a Commercial Complex. P.W.1-Balaji, Son of the Landlady has admitted owning of Eight shops in Nanniammal Pettai. R.W.2-Naseer Batcha has also clearly spoken about the Eight shops in a Commercial Complex owned by the Revision Petitioner. There is every possibility of using the Shop in Big Bazar Street. The only advantage that would enure to the Landlady by evicting the Tenant is that the entire premises could be used as one unit. But, this advantage to the Landlady is very much little in comparing to the great hardship that would be caused to the Respondent / Tenant. As discussed earlier, the Respondent / Tenant has been in occupation of the premises for number of years. In the tenanted premises – Door No.5, which is a small portion, the Tenant is running the Stationery Stores. There is long standing dispute between the parties. No evidence is adduced showing that it would be easy for the Respondent / Tenant to secure alternative accommodation. By running the Stationery Store, the Tenant is to eke out his living and his family members. When that being so, it would be a great hardship to the Tenant if he is to be evicted from the premises. 22. All the circumstances lead to a sure inference that the comparative hardship to the Tenant would be greater and the benefit of the Revision Petitioner / Landlady would be little excepting to say that she would be carrying out the business in the same premises. Learned counsel for the Revision Petitioner / Landlady has drawn the attention of the Court to the decision reported in HOTEL DE-BROADWAY ..VS.. M/S. SNOW WHITE INDUSTRIAL CORPORATION ( 1997 (I) L.W. 421 ) wherein it has been held that mere inconvenience of Tenant cannot deprive Landlord of his bona fide right to have additional accommodation. The case in hand stands on different footing. It is not mere inconvenience to the Tenant; but great hardship would be caused to the Respondent / Tenant if he is evicted from the Tenanted Building. Further, relying upon the decision reported in KUTHALINGAM .VS. The case in hand stands on different footing. It is not mere inconvenience to the Tenant; but great hardship would be caused to the Respondent / Tenant if he is evicted from the Tenanted Building. Further, relying upon the decision reported in KUTHALINGAM .VS. JAHIR HUSSAIN ( 1997 (2) L.W. 470 ) learned counsel for the Revision Petitioner / Landlady has submitted that the Tenant cannot dictate the terms to the Landlord as to which of the premises that the Landlord is to occupy. Within a short distance of 200 feet, the Revision Petitioner / Landlady owns another Shop, which has been rented to Tenant. If the space in Door No.6 is insufficient, the Revision Petitioner / Landlady and her Family members could well occupy the other shop, which is in Big Bazar Street. It may be that the Respondent / Tenant continued occupation in Door No.5, the Landlady might be put to inconvenience; but that inconvenience cannot be the reason for ordering Eviction. 23. Upon appreciation of evidence, the findings of the Rent Control Appellate Authority does not suffer from any erroneous approach or perversity warranting interference. The Revision Petitioner / Landlady has not proved the bonafide requirement, seeking the Building for additional accommodation. There is no reason to interfere with the findings of fact arrived at by the Rent Control Appellate Authority. This Revision has no merits and is bound to fail. 24. Therefore, the order of the Rent Control Appellate Authority / Principal Subordinate Judge, Dindigul dated 08.11.2002 in R.C.A.No.20 of 1999 is confirmed and this Civil Revision Petition is dismissed. In the circumstances of the case, there is no order as to costs.