Research › Search › Judgment

Madras High Court · body

2006 DIGILAW 1203 (MAD)

M. K. Velayudham v. May Lambert & Others

2006-04-27

M.JAICHANDREN

body2006
Judgment :- 1. The Civil Revision Petition has been preferred against the Judgment and decree, dated 23.9.2005, made in R.C.A.No.923 of 2002, on the file of VII Judge, Small Causes Court, Chennai confirming the order and decree, dated 27.9.2002, in R.C.O.P.No.1749 of 1995 on the file of XIII Judge, Small Causes Court, Chennai. 2. Heard the learned counsel for the petitioner as well as for the respondents. 3. The case of the petitioner/tenant is that the respondents are the legal heirs of late D. Lambert. The said late D. Lambert had filed a petition for eviction in R.C.O.P.No.1749 of 1995 under Sections 10(3)(a)(i) and 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (herein after referred to as the 'Act'). 4. The petitioner further states that another petition in R.C.O.P.No.1944 of 1995 had been filed for fixation of fair rent. Pending both the cases, the said D. Lambert had died and the respondents herein were brought on record as the legal heirs. The claim of wilful default was rejected by the Rent Controller and the eviction petition was allowed on the ground of own use and occupation through an order and decree, dated 27.9.2002, against which the petitioner/tenant had preferred an Appeal in R.C.A.No.923 of 2002. The respondents/landlords had hot preferred any Appeal against the rejection of their claim of 'wilful default'. 5. In the petition for fixation of fair rent in R.C.O.P.No.1944 of 1995, the fair rent was fixed at Rs. 16,039 against which the petitioner preferred an Appeal in R.C.A.No.1083 of 2004 on the file of VII Judge, Small Causes Court Chennai. Both the Appeals were heard and decided and a common judgment was passed on 23.9.2005. The learned VII Judge, Court of Small Causes, Chennai, had reduced the fair rent of Rs.16,039 fixed by the Rent Controller in R.C.O.P.No.1944 of 1995 to Rs.5,330. However, the petition for eviction was ordered on the ground of own use and occupation. By a judgment and decree, dated 23.9.2005, against which the present Civil Revision Petition has been filed. 6. The learned VII Judge, Court of Small Causes, Chennai, had reduced the fair rent of Rs.16,039 fixed by the Rent Controller in R.C.O.P.No.1944 of 1995 to Rs.5,330. However, the petition for eviction was ordered on the ground of own use and occupation. By a judgment and decree, dated 23.9.2005, against which the present Civil Revision Petition has been filed. 6. It is also the case of the petitioner/tenant that the order of the Rent Control Appellate Authority dated 23.9.2005, made in R.C.A.No.923 of 2002 ordering eviction on the ground of own use and occupation as claimed by the respondents/landlords is not proper since the respondents have entered into a ale agreement, dated 3.4.2002, marked as Ex.R-1, for selling the property to the petitioner and to his mother and brother for a sale consideration of Rs.56 lakhs and that a sum of Rs.15 lakhs had already been paid by the petitioner to the respondents/landlords. The petitioner further states that the execution of sale agreement has not been disputed by the respondents. Since the Rent Controller did not give sufficient opportunity to mark the sale agreement and let in evidence thereon, the sale agreement could be marked only before the Rent Control Appellate Authority, who had wrongly concluded that the demand, respondents/landlords had substantiated their claim for own use and occupation. The petitioner further contends that the Appellate Authority ought to have remanded the case for fresh evidence or should have perused Ex.R-1 in its proper perspective to come to the right conclusion. The decision of the respondents to sell the property by executing the sale agreement, dated 3.4.2002, shows that there was no bonafide requirement for their own use and occupation. Further, the Rent Control Appellate Authority had failed to note that as per clauses 6 and 8 of the sale agreement the rent was fixed at Rs.900 per month and that the respondents had agreed to withdraw all the Rent Control proceedings pending before the authorities. 7. The petitioner further states that on 7.10.1993, May Lambert had entered into an agreement of sale with the petitioner/tenant to convey the entire land and building in the petition premises for a consideration of Rs.7,50,000 and a sum of Rs.50,000 was received by her as advance and the petitioner was put into possession of the premises in part performance of the agreement of sale. The petitioner/tenant was also permitted to construct the super-structure thereon and there was no rent to be paid to the respondents/landlords as agreed between the parties, since the date of the agreement of sale. It was also contended on behalf of the petitioner that the claim of the respondents for own use and occupation is not bonafide and that they are owning other buildings in the city. Further, after the agreement of sale was concluded and the property was put in possession of the petitioner, there cannot be 'wilful default' in payment of rent and the petitioner had become the owner of the petition premises and that there cannot be a jural relationship of landlord/tenant between the petitioner and the respondents. Therefore, the Rent Controller had no jurisdiction to entertain the petition for eviction. 8. On the other hand, it has been submitted on behalf of the respondents that the first respondent who was the absolute owner of the petition premises, had later died and the petitioner herein was a tenant under him in respect of the entire petition premises on a monthly rent of Rs.900. The petition premises was bona fide required for the own use and occupation of the first respondent's daughter, Ms. Chandra Murali, who is the fourth respondent in the Civil Revision Petition. After the death of D. Lambert, his wife May Lambert and his children have been brought on record as his legal representatives. 9. It is also the case of the respondents that the petitioner herein, who was the tenant in the petition premises, was informed that the residential premises was required for own use and occupation of the fourth respondent namely, Ms. Chandra Murali. Even though the petitioner had accepted the bona fide requirement of the fourth respondent and agreed to vacate the premises, he had not done so as assured by him. Therefore, a notice, dated 22.4.1994, was sent to the petitioner reminding him that he should vacate the petition premises. Since the petitioner/tenant had not complied with the demand, the petition for eviction in R.C.O.P.No.1749 of 1995 was filed for and eviction on the ground of own use and occupation. 10. Therefore, a notice, dated 22.4.1994, was sent to the petitioner reminding him that he should vacate the petition premises. Since the petitioner/tenant had not complied with the demand, the petition for eviction in R.C.O.P.No.1749 of 1995 was filed for and eviction on the ground of own use and occupation. 10. The Rent Controller, after analysing the rival contentions and based on the documents filed and on analysing the evidence on record, allowed the petition for eviction on the ground of own use and occupation as claimed by the petitioner under Section 10(3)(a)(i) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, by his order, dated 27.9.2002. Against the said order, the petitioner herein had filed an Appeal in R.C.A. No. 923 of 2002, under Section 23(l)(b) of the Act, stating that the Rent Controller had failed to see that the Rent Control Court does not have the Jurisdiction to entertain the eviction petition and that it had failed to see that the appellant was put in possession of the entire premises as part performance of the agreement of sale. By his Judgment and decree, dated 23.9.2005, the Rent Control Appellate Authority confirmed the order passed by the Rent Controller on 27.9.2002, stating that the respondents/landlords have clearly proved their bonafide requirement of the petition premises for own use and occupation and confirmed the order of eviction under Section 10(3)(a)(i) of the Act. Therefore, the petitioner herein has been constrained to file the present Civil Revision Petition against the said judgment and decree passed by the Rent Control Appellate Authority. 11. The Learned counsel for the petitioner relied on the following decisions. 11.1. In the case of Pasupuled Venkateswarlu v. The Motor and General Traders, 1975 (1) SCC 770 , wherein the Supreme Court held as follows: “For making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many case must, take cautious cognizance of events and development subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the Tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific prevision or fair-play is violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling factors or just circumstances. Nor can the Court contemplate any limitation on this power to take note of updated facts to confine it to the Trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice.” 11.2. In the case of Hameedia Hardware Stores v. B. Mohan Lal Sowcar, 1988 (2) SCC 513 , the Supreme Court held as follows: ......”In the context of Rent Control which is enacted for the purpose of giving protection to tenants against unreasonable evictions and for the purpose of making equitable distribution of buildings amongst persons who are in need of them in order to prove that his claim is bona fide a landlord should establish that he deserves to be put in possession of the premises which is in the occupation of a tenant." 11.3 In the case of Super Forgings & Steels (Sales) Pvt. Ltd. V. Thyabally Rasuljee, 1995 (1) SCC 410 , the Supreme Court held as follows: “….. The Supreme Court has power to take note of the circumstances which have cropped up during the pendency of an Appeal under Article 136 for granting, denying or moulding the relief to be given to a party in such appeal, for meeting the ends of justice. The Supreme Court has power to take note of the circumstances which have cropped up during the pendency of an Appeal under Article 136 for granting, denying or moulding the relief to be given to a party in such appeal, for meeting the ends of justice. Hence, the power of the Supreme Court in an Appeal under Article 136 to take cautious cognizance of events and developments subsequent to institution of eviction proceeding and grant deny or mould the relief sought by a party, in consonance with justice and fair play is not restricted merely because it is exercising its power to deal with an Appeal conferred upon it by the Constitution.” 11.4. In the case of Fakir Mohideen v. Habibunnissa (Died) and others, 1997 (2) LW 734 , this High Court held as follows: …..“It is settled law that in a claim for eviction on the ground of bona fide own occupation, that requirement must be available to the landlord not only on the date of petition, but it should also continue to be there, on the date of final adjudication of the rights. If in between he periods, there is a change of circumstance due to subsequent events, that is also a matter which should be taken into consideration by the Court.” 11.5 In the case of T. Sivasubramaniam and others v. Kasinath Pujari and others, 1999 (7) SCC 275 , the supreme Court held as follows: “…. So when a landlord desires the tenanted premises, held, the requirement of law is that the landlord must set out his need for the premises in his petition and establish that such a need is bona fide – the need must be genuine, honest and conceived in good faith.” 11.6. In Murugan finance Arni v. Senthilnathan, 2000 (2)_ MLJ 339, this Court has held as follows: “When subsequent events are brought to the notice of court in spite of limited jurisdiction, the Court will have to take into consideration the above fact.” 11.7 In the case of Sait Nagjee Purushotham & Co. In Murugan finance Arni v. Senthilnathan, 2000 (2)_ MLJ 339, this Court has held as follows: “When subsequent events are brought to the notice of court in spite of limited jurisdiction, the Court will have to take into consideration the above fact.” 11.7 In the case of Sait Nagjee Purushotham & Co. Ltd. V. Vimalabai Prabhulal and Other, 2005 (8) SCC 252 , the Supreme Court has held: “….normal rule is that rights and obligations of parties are to be determined on date of petition and subsequent events can be taken into consideration for moulding relief, provided such events are of such a nature and dimension as to completely eclipse the need and make it lose significance altogether.” The above cited cases are relied upon by the learned counsel for the petitioner to persuade this court to taken note of the subsequent even of the respondents/landlords entering into an agreement to sell the petition premises. Such an event, according to the petitioner/tenant, would certainly nullify the need of the respondents for own use and occupation of the premises. Further, the need cannot be held to be bona fide in nature. 12. On the other hand, the learned counsel for the respondent relied the following decisions. 12.1. In P. Veerappa v. M.A. Mohammed Amanulla, 1996 (1) SCC 415 , the Supreme Court held as follows: “.......So long as the agreement subsists the lesser right of tenancy stood merged with larger rights accrued under the agreement. But in the compromise itself, the appellant recognised the reversion to his pre­ existing rights as tenant up to the date of the compromise. In other words, subject to compliance of the terms of the contract, his tenancy rights continued. The terms have not been complied with and the agreement came to amend. Thereby, the appellant's pre-existing rights as a tenant stood revived and the appellant and the respondent were bound by the relationship of landlord and tenant" 12.2. In the case of Gaya Prasad v. Pradeep Srivastava, 2001 (2) SCC 604 , the Supreme Court held that in a case of eviction under the rent control proceedings when there is a bonafide requirement of the landlord he should not be penalised for the slowness of the legal system. The crucial date for deciding the bona fides of the requirement of landlord is the date of his application for eviction. The crucial date for deciding the bona fides of the requirement of landlord is the date of his application for eviction. Subsequent developments during pendency of eviction petition occurring because of slowness of process of litigation itself and made use of by sitting tenants, cannot be made the basis for denying the landlord relief when the litigation at last reaches the final stages. Subsequent events may in some situations be considered to have overshadowed the genuineness of landlord's need, but only if they are of such nature and dimension as to completely eclipse such need and make it lose significance altogether. 12.3. In the case of Om Prakash Gupta v. Rambir B. Goyal, 2002 (2) SCC 256 , the Supreme Court held as follows: ....... Person wishing Court to take notice of such events, held, must make out a case justifying such notice being taken. Subsequent events can be taken cognizance of only if Court's attention is invited towards them according to the established rules of procedure so that the pre-requisites of affording the opposite party an opportunity of meeting the new case and of determining the real questions in controversy are fulfilled. Where appellant-defendant only filed an affidavit stating certain facts and did not seek to amend the pleadings, nor made a prayer regarding cognizance of subsequent events (initiation of resumption proceedings against respondent allottee landlord by Urban Development Authority in this case) nor prayed for appropriate relief, the Court would not be justified in taking note of the facts concerned. Amendment of pleadings are necessary in case subsequent events are to be taken note of. .... Court has power to take note of and mould relief as appropriate but only if three conditions are satisfied: (1) relief, as originally claimed has become inappropriate or impossible to grant; (2) taking note of such events or changed circumstances would lead to early end of the litigation and would result in complete justice being done; and (3) subsequent events are brought to notice of Court promptly and in accordance with rules of procedure to ensure that opposite party is not taken by surprise. Clarified that under ordinary rule of Civil Law, the relevant rights of the parties ate those that existed on the date of the institution of the suit" 12.4. Clarified that under ordinary rule of Civil Law, the relevant rights of the parties ate those that existed on the date of the institution of the suit" 12.4. In the case of Shashi Kapila v. R.P. Ashwin, 2002 (1) SCC 583 , the Supreme Court held that the bonafide requirement of the premises of the landlord cannot be questioned solely on the ground that sometime in the past he had wished to sell the tenanted premises. This was a case where landlord in had entered into an agreement for sale of the suit premises but the sale was never finalised and six years later; after shifting from another town to the place where premises were located, he sought eviction of tenant on ground and an of bona fide requirement for personal occupation. On facts, it was held that the landlord could not be pre-empted from claiming relief. 12.5. In the case of Ram Nibas Gagar v. Debojyod Das and others, 2003 (1) SCC 472 , the Supreme Court held as follows: "In the present case, both the applications filed by the appellant tenant i.e., the application filed in the First Appellate Court and the Application filed in the Supreme Court fail to satisfy the twin tests: (i) of bringing of the subsequent events having a material bearing on the relief sought for from the Court; and (ii) having been promptly brought Ian to the notice of the Court. The Application filed in the Supreme Court by the appellants is a belated attempt to dislodge the findings of facts hi concurrently arrived at by the two Courts below the High Court, as also by the High Court. While exercising jurisdiction under Article 136 of the Constitution, it will not be just for the Supreme Court to entertain such a belated and half-hearted effort to introduce subsequent events by the appellant tenant. The same law has been reiterated by a subsequent of Division Bench in J.J. Lal (P) Ltd. v. MR. Murali, 2002 (1) CTC 487: 2002 (3) SCC 98 . It was held-- 11. The ordinary rule of civil law is that the rights of the parties stand crystallized on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. It was held-- 11. The ordinary rule of civil law is that the rights of the parties stand crystallized on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and, enable complete justice being done to the parties and (iii) that such subsequent event is brought to the surprise." 12.6. In the case of Atma S. Berar v. Mukhtiar Singh, 2003 (2) SCC 3 , the Supreme Court held as follows: "One of the grounds for eviction contemplated by all the rent control legislations, which otherwise generally lean heavily in favour of the tenants, is the need of the owner landlord to have his Own premises, residential or non-residential, for his own use or his own occupation. .......The power of the Court to take note of subsequent events is well settled and undoubted. However, it is accompanied by three riders firstly, the subsequent event should be brought promptly to the notice of the Court; secondly, it should be brought to the notice of the Court consistently with the rules of procedure enabling the Court to take note of such events and affording the Opposite Party an opportunity of meeting or explaining such events; and thirdly, the subsequent event must have a material bearing on right to relief of any Party.­ 12.7. In the case Of Pratap Rai Tanwani and another v. Uttam Chand and another, 2004 (8) SCC 490 , the Supreme Court held as follows: "The words "reasonable requirement" undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire. The concept of bonafide requirement in the sense Of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the judge of facts by placing himself in the armchair of the landlord and then posing a question to himself - whether in the given facts, substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bonafide…. While considering the bona fides of the need Of the landlord the crucial date is the date of the petition. The normal rule is that rights and obligations Of the Parties are to be determined as they were when the lis commenced and the only exception is that the Court is not precluded from moulding the reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. ......The Judicial tardiness, for which unfortunately our system has acquired notoriety, causes the Us to creep through the fine for long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many events are bound to take place which might happen in relation to the parties as well as the subject-matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system, it shatters the confidence of the litigant, despite the impairment already caused." The learned counsel for the respondent relied on the above cited cases in support of his contentions that the need of the respondents was bonafide and that any subsequent event can be brought to the knowledge of the Courts of law or the Rent Control Authorities only in accordance with the procedure established by law. 13. 13. On a perusal of the documents available before this Court and on hearing the learned counsel appearing for the petitioner as well as the respondents, this Court is of the considered view that the questions relating to the Jural relationship of landlord and tenant, the jurisdiction of the Rent Controller as well as Rent Control Appellate Authority, and the bona fide requirement of the respondents for own use and occupation of the petition premises under Section 10(3)(a)(i) of the Act will all depend upon the findings with regard to the nature, content and the intention of the sale agreement dated 3.4.2002, marked as EX-R-1 before the Rent Control Appellate Authority. Even though the sale agreement, dated 3.4.2002, was marked by the petitioner/tenant in his Appeal R.C.A.No.923 of 2002, there was no evidence let in on either side with regard to the said document. Even though, the Rent Control Appellate Authority had discussed the case on merits of the said document, unless the parties concerned had been given sufficient opportunity of letting in oral evidence with regard to the said document, the bona fide nature of the respondents/landlords claim for own use and occupation of the premises under Section 10(3)(a)(i) of the Act, could not have been fully appreciated. Therefore, in the facts and circumstances of the case, this Court finds it appropriate to set aside the Judgment and decree, dated 23.9.2005, made in R.C.A.No.923 of 2002 on the file of the VII Judge, Small Causes Court, Chennai, and to remand the matter back to the Rent Control Appellate Authority, namely VII Judge, Court of Small Causes, Chennai, with the direction to permit the parties concerned to let in further evidence relating to the document marked as Exhibit R-1 and to afford them sufficient opportunity of hearing, in accordance with the procedure established by law and to dispose of the Rent Control Appeal within a period of 3 months from the date of receipt of a copy of this order. With the above directions, the Civil Revision Petition is disposed of Consequently connected Civil Miscellaneous Petition is closed. No costs.