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2008 DIGILAW 915 (MAD)

M. Murugammal v. Sakunthala

2008-03-13

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- This revision has been directed against the judgment in RCA.No.400 of 2004 on the file of the VII Judge, Court of Small Causes, Chennai, which had arisen out of the order in RCOP.No.2070 of 2002 on the file of the XI Judge, Court of Small Causes, Chennai. 2. The said RCOP.No.2070 of 2002 was filed by the learned landlady under Section 10 (3)(a)(i) of the Tamil Nadu Building (Lease and Rent Control) Act (hereinafter referred to as the Act). The short facts stated in the petition are that the respondent is a tenant and that she had committed wilful default in payment of rent from the month of March2002 to September-2002 and that the landladys son by name Padmanaban is residing at Door No.25, (New No.45) Rajagopal Street, Chintadripet, Chennai-2 on rental basis and now the landladys son finds it difficult to live at Door No.25, (New. No.45), Rajagopal Street, Chintadripet, Chennai-2. Hence, the landlady / petitioner in RCOP.NO.2070 of 2002 required the petition scheduled building for the use and occupation of her son and his family. 3. The respondent in her counter would contend that the monthly rent was Rs.350/-and there was no wilful default in payment of rent by her and upto May-2002 she had paid the rent to the landlady without any default and when she tendered the rent for the month of June-2002, the landlady had refused to receive the same and asked her to vacate and handover the vacant possession to her within two weeks. Under such circumstance, the respondent issued advocates notice dated 7. 2002 calling upon the respondent to specify the name of the Bank within ten days so as to enable her to deposit the rent therein. The petitioner had evaded to receive the above said notice. Thereafter, the respondent had sent the rent of June-2002 by money order dated 31.07.2003 by deducting the money order commission. But the petitioner had evaded to receive the same. Hence, the respondent filed RCOP.No.1450 of 2002 before the XIII Judge, Court of Small Causes, Chennai, under Section 8(5) of the Act for depositing the rent into the Court. After contest, the said RCOP.No.1450 of 2002 was allowed on 31.01.2003 directing the respondent to deposit the rent payable to June-2002 at the rate of Rs.150/- pm into the Court. Hence, the respondent filed RCOP.No.1450 of 2002 before the XIII Judge, Court of Small Causes, Chennai, under Section 8(5) of the Act for depositing the rent into the Court. After contest, the said RCOP.No.1450 of 2002 was allowed on 31.01.2003 directing the respondent to deposit the rent payable to June-2002 at the rate of Rs.150/- pm into the Court. Accordingly, the respondent had deposited the rent into the Court for the period from June-2002 to January-2003 on 2. 2003 and for the month of February-2003 rent was deposited into the Court on 3. 2003. So, there is no arrears of rent. The landladys son G.Padmanabhan is not residing in the rented premises with his family at Door No.25 (New No.45), Rajagopal Street, Chintadripet, Chennai-2. The said Padmanabhan is having two daughters. The allegation that the said Padmanabhan finds it difficult in living in rented premises and the petitioner requires the petition scheduled premises for the use and occupation of her son and his family is not sustainable. The petitioner is the owner of the premises No.9, North Padavattamman Koil Street, Chintedripet, Chennai-2, a new three storied building each floor measuring about 1800 sq.ft and measruing 5400 sq.ft. The petitioner and her son Mr.Padmanabhan are living with his family in the said premises No.9, North Padavattamman Koil Street, Chintadripet, Chennai-2. There are two tenants in the said premises. Apart from the above two residential buildings, the petitioner and her son Padmanabhan are having six other residential buildings in the City of Chennai viz., 1) the house ground and premises No.3, Koviloor Amman Koil Street, Chintadripet, Chennai-2, 2)the house ground and premises No.65, Cox Colony, Housing Board, Chintadripet, Chennai-2, 3)the house ground and premises No.145, Meenambal Nagar, M.S.Nager, 2nd street, Chetpet, Chennai-31, 4)the house ground and premises No.117, Kamarajar Nagar Street, Halls Road, Kilpauk, Chennai-10, 5)the house ground and premises No.69, Kamarajar Nagar, Halls Road, Kilpauk Garden, Chennai-10, and another residential house at Kodambakkam, Chennai, which were let out to various tenants. As the petitioners son Mr.Padmanabhan is living in a very big portion measuring 1800 sq.ft at No.9, North Padavattaman Koil Street, Chintadripet, Chennai-2, it is unbelievable to demand for the petition scheduled portion which is an old tiled portion less than 100 sq.ft in area. As the petitioners son Mr.Padmanabhan is living in a very big portion measuring 1800 sq.ft at No.9, North Padavattaman Koil Street, Chintadripet, Chennai-2, it is unbelievable to demand for the petition scheduled portion which is an old tiled portion less than 100 sq.ft in area. The petitioner has also recently in June-2002 had completed the new four storied building at Premises No.3, Koviloor Amman Koil Street, Chintadripet, Chennai-2, which is just 100 feet away from the petition premises. If the petitioner is really intended to accommodate her son Padmanabhan in a house, she could have very well accommodated him in the said new house. Hence, the petition is liable to be dismissed. 4. Before the learned Rent Controller on the side of the petitioner one G.Dharmanathan was examined as P.W.1, besides examined G.Padmanabhan, the son of the landlady as P.W.2. The daughter of the respondent / tenant viz. Tmt.Janaki was examined as R.W.1. Ex.P.1 to Ex.P.12 were marked on the side of the petitioner and Ex.R.1 to Ex.R.3 were marked on the side of the respondent. After going through the evidence both oral and documentary and after giving due consideration to the submissions made by the learned counsel on both sides, the learned Rent Controller having come to the conclusion that the petition filed by the landlady deserves no merits, had dismissed the petition. Aggrieved bythe findings of the learned Rent Controller, the landlady preferred an appeal in RCA.No.400 of 2004 before the VII Judge, Court of Small Causes, Chennai. The learned Rent Control Appellate Authority after going through the evidence on record and after considering the submissions made by the learned counsel appearing for the appellant as well as the learned counsel appearing for respondent, had allowed the appeal thereby directed the tenant to vacate and handover possession giving a months time, which necessitated the tenant to prefer this revision. 5. Heard the learned counsel for the revision petitioner as well as the learned counsel for the respondent. According to the learned counsel appearing for the revision petitioner, the petition under Section 10(3)(a)(i) of the Act was filed by the landlady on the ground that she requires the petition scheduled building for the purpose of her son Padmanabhans occupation with his family since he was residing in a rented house at Door No.25 (New No.45), Rajagopal Street, Chintadripet, Chennai-2. To substantiate this contention, the landlady had relied on Ex.P.1 to Ex.P.12 – documents. The learned counsel appearing for the revision petitioner would brought to the notice of this Court that Ex.P.1, Ex.P.2 and Ex.P.6 to Ex.P.12 are all subsequent to the date of filing of the petition and that they are the documents of the year 2003, whereas RCOP was filed in the year 2002. 6. The only document on which reliance was placed by the landlady to show that her son Padmanabhan / P.W.2 is residing at Door No.25, New No.45, Rajagopal Street, Chintadripet, Chennai-2 is Ex.P.3 dated 20.6.2002. Ex.P.3 is a rent receipt note book. The evidence of P.W.2 in this regard is note worthy to be referred to in this revision. P.W.2 in the cross-examination would state that from June-2002 onwards he is residing at Door No.25, Rajagopal Naicker Street, Chintadripet, Chennai-2. He had paid Rs.22,000/- to the owner of the house viz., Prabhu towards rental advance. But the said Prabhu had not given any receipt for having received Rs.22,000/- towards advance. P.W.2 would further admit that there was no rental agreement between him and the said Prabhu in respect of Door No.25, New No.45, Rajagopal Street, Chintadripet, Chennai 2. According to P.W.2, Ex.P.3 was a rental receipt, issued by the said Prabhu. Subsequently, he would state that apart from Prabhu his mother Kanchana has also signed in the receipts in Ex.P.3. Immediately he would retract from his evidence and say that he does not know the name of the mother of Prabhu. A perusal of Ex.P.3 would go to show that only in the last receipt dated 7. 2003 one Prabhu had signed on the stamp paper. In all other receipts Prabhu has not signed, but some one else has signed. According to P.W.2, only his wife is aware of the details regarding Ex.P.3, but to our dismay P.W.2 has not examined his wife to prove Ex.P.3 before the trial Court. Ex.P.12 postal cover bears the seal of the year 2003. In all other receipts Prabhu has not signed, but some one else has signed. According to P.W.2, only his wife is aware of the details regarding Ex.P.3, but to our dismay P.W.2 has not examined his wife to prove Ex.P.3 before the trial Court. Ex.P.12 postal cover bears the seal of the year 2003. The learned counsel for the respondent relying on Section 10(3)(a)(i) of the Act would contend that if the landlord proves that the building in occupation of the tenant is required for the landlords own occupation or for the occupation of any member of his family and if he proves that he is not in occupation of a residential building of his own in the city, town or village concerned, then he is entitled to get the relief under Section 10(3)(a)(i) of the Act. There cannot be any two opinion with regard to that. But only thing is the landlord must prove that the building in occupation of the tenant is required for his occupation or for occupation of any member of his family. Here, it is the definite case of the landlady that the building is required for the occupation of her son Padmanabhan / P.W.2, who, according to the landlady, is residing at Door No.25 New No.45, Rajagopal Street, Chintadripet, Chennai-2 for rent. But it cannot be said that the landlay had proved that Padmanabhan / P.W.2 / her son was residing on the date of filing of the petition in the year 2002 at Door No.25, New No.45, Rajagopal Street, Chintadripet, Chennai-2. The reasoning given by the learned Rent Control Appellate Authority as that the tenant had failed to prove that the landlady is having her own house at Door No.9, Padavattamman Koil street, Chintadripet, Chennai-2, is not a ground to allow the appeal. It is settled proposition of law that the petitioner or the plaintiff must rely on his own case and prove the same by adducing evidence. He cannot rely on the weakness of the respondent or defendant to prove his case. It is settled proposition of law that the petitioner or the plaintiff must rely on his own case and prove the same by adducing evidence. He cannot rely on the weakness of the respondent or defendant to prove his case. Having failed to prove that the petition schedule building is required for her son P.W.2 and his family on the ground that his son is residing in a rented premisses at Door No.25, New No.45, Rajagopal Street, Chintadripet, Chennai2, as rightly held by the learned Rent Controller, the landlady is not entitled to the relief asked for under Section 10(3)(a)(i) of the Act. Even though in the petition the landlady would sate that the tenant had committed wilful default, she has not preferred the petition under section 10(2)(1) of the Act. 7. It is brought to the notice of this Court that during pendency of this revision, this Court had appointed an Advocate Commissioner to note down the physical features of the building. From the report of the Advocate Commissioner, it is seen that the impugned building is in a dilapidated condition. But the petition was not filed for eviction under demolition and reconstruction under Section 14(1)(b) of the Act. Under such circumstance, I am of the view that the findings of the learned Rent Control Appellate Authority in RCA.No.400 of 2004 on the file of the VII Judge, Court of Small Causes, Chennai, is liable to be interfered with by this Court. 8. In fine, the revision is allowed and the judgment in RCA.No.400 of 2004 on the file of the VII Judge, Court of Small Causes, Chennai, is set aside and RCOP.No.2070 of 2002 on the file of the XI Judge, Court of Small Causes, Chennai, is hereby dismissed. No costs.