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2010 DIGILAW 1695 (MAD)

Sukhraj Barola v. D. Prema

2010-04-09

S.TAMILVANAN

body2010
Judgment :- 1. This Civil Revision has been preferred against the Judgment and Decree, dated 21.04.2004 made in R.C.A. No.147 of 2000 on the file of the Rent Control Appellate Authority/VIII Judge, Court of Small Causes, Chennai, reversing the order and decretal order, dated 22.12.1999 passed in R.C.O.P. No.2808 of 1995 on the file of the Rent Controller/XVI Judge, Court of Small Causes, Chennai. 2. The Rent Control Original Petition in R.C.O.P. No.2808 of 1995 was filed by the Respondents herein under Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control ) Act, 1960 (herein after referred to as ‘Act’), seeking an order to evict the Petitioner/Tenant from the Petition premises. After the trial, the learned Rent Controller, dismissed the R.C.O.P. without costs. Aggrieved by which, the Respondents herein preferred Rent Control Appeal in R.C.A. No.147 of 2000. By the impugned Judgment and Decree, dated 21.04.2004, the learned Rent Control Appellate Authority, reversed the Judgment of the Trial Court, whereby allowed the R.C.O.P., seeking eviction of the Petitioner/Tenant. Aggrieved by which, the Revision has been preferred by the Petitioner/Tenant. 3. The point for determination in the Civil Revision Petition is whether the impugned Judgment and Decree passed by the Court below under Section 10(3)(c) of the Act is legally sustainable or liable to be set aside on the grounds raised by the Revision Petitioner. 4. Mr. Basthimal Jambar, learned Counsel appearing for the Revision Petitioner submitted that the Respondents/landlords have not established their claim to evict the Petitioner/Tenant, as contemplated under Section 10(3)(c) of the Act and that the Rent Control Appellate Authority failed to note that there was absolutely no evidence regarding the relative hardship, based on the evidence of P.W.1 and P.W.2. Learned Counsel for the Petitioner further contended that the evidence adduced by both parties would show that the Petitioner/Tenant has to suffer greater hardship, if he was evicted from the petition premises. In support of his contention, the learned Counsel relied on the following decisions: 1. B. Kandasamy Reddiar v. O. Gomathi Ammal, 1998 (2) CTC 687 (SC) : AIR 1998 SC 3235 . 2. Sethuraman v. Nagalakshmi, 1997 (3) CTC 339 : 1998 (2) MLJ 547 . 3. Navamani Nadar v. Rangaswami Achari and another, 1977 TNLJ 544. 5. Per contra, Mr. B. Kandasamy Reddiar v. O. Gomathi Ammal, 1998 (2) CTC 687 (SC) : AIR 1998 SC 3235 . 2. Sethuraman v. Nagalakshmi, 1997 (3) CTC 339 : 1998 (2) MLJ 547 . 3. Navamani Nadar v. Rangaswami Achari and another, 1977 TNLJ 544. 5. Per contra, Mr. P.B. Balaji, learned Counsel appearing for the Respondents/Landlords submitted that there is a clear finding by the Rent Control Appellate Authority, based on evidence to evict the Petitioner/Tenant under Section 10 (3)(c) of the Act. Learned Counsel for the Respondents drew the attention of this Court to the fair order passed in the R.C.O.P. available at page number 15 of the typed set, wherein the learned Rent Controller has held that the Respondents 2 and 3 herein are in need of the petition premises for their additional accommodation, however, merely considering the oral evidence of the Petitioner/Tenant, it was found by the Trial Court, that the residence and the place of business of the Petitioner/Tenant are in the same area and on that ground, the learned Rent Controller held that if the Petitioner/Tenant is ordered to be evicted from the petition premises, that would cause more relative hardship to the Petitioner/defendant, than the Respondents/Landlords, without considering the real hardship of the Respondents/Landlords. 6. In view of the finding of the alleged relative hardship, the learned Rent Controller dismissed the Rent Control Original Petition. The aforesaid finding was based merely on the ground that the witnesses examined on the side of the Landlords have not specifically stated about the relative hardship caused to them. From the order passed by the learned Rent Controller, it is seen that the deceased First Petitioner, D. Dayanandamurthy, the third Petitioner, Ramesh were examined as witnesses on the side of the Landlords. 7. In the cross-examination, the Revision Petitioner/Tenant, who was examined as R.W.1 has specifically stated that one residential portion of the ground floor of the building is in his occupation, which is being used for residential and non-residential purpose and that he is residing in a rented house at No.1, Kasi Viswanathar Temple Street, since 2001 in that area and that the distance of his aforesaid residential house form the R.C.O.P. premises is about one furlong, for which he is paying Rs.5,000/- as rent, which is used only for residential purpose of the Petitioner herein. 8. 8. According to the learned Counsel appearing for the Respondents/Landlords, the Judgment and Decree passed by the Rent Control Appellate Authority is mainly based on evidence available on record on the relative hardship of the Respondents is more than the Petitioner/Tenant, hence, pleaded for dismissal of the Civil Revision Petition. In support of his contention, the learned Counsel for the Respondents relied on the following decisions: 1. Noor Ahmed v. Ramasamy, 2003 (2) MLJ 604 ; 2. Ameena Beebi alias Jamurthu Begum v. Khaja Mohideen, 2000 (2) MLJ 196 ; 3. Andal, N. and another v. M. Salim and another, 2000 (1) LW 608 ; and 4. Sherwood Educational Society, etc. v. Abid Namazie & others, 1997 (1) LW 323 . 9. This Court in Navamani Nadar v. Rangaswami Achari and another, 1977 TLNJ 544, has held as follows: “The Proviso to Section 10(3)(c) makes it obligatory for the Rent Controller and the Appellate Authority to go into the question of the relative hardship that would be suffered by a Tenant when an order of eviction is passed against him under Section 10 (3)(c). It is a statutory requirement and has therefore to be performed by the Rent Controller and the Appellate Authority without evasion or failure.” 10. In Sethuraman v. Nagalakshmi, 1997 (3) CTC 339 : 1998 (2) MLJ 547 , this Court has held that there has to be categorical finding on relative hardship caused to the Tenant and unless the question on relative hardship is decided, proceedings are vitiated and the onus of proof of the relative hardship is on the Landlord. In the aforesaid decision, it was held further as follows: “10. The relative hardship can be decided only, on the basis of the facts which should be available in the pleadings and in the evidence, so only the basis of the said pleadings and evidence, the Rent Controller can satisfy that the hardship to be caused to the Tenant by granting eviction would outweigh the advantage to the Landlord and on that basis the Eviction Petition has to be rejected. So, this crucial aspect could be characterised as a special instance in the matters arising out of Section 10(3)(c) of the Act. There should be a categorical finding by the statutory authorities that the hardship which may be caused to the Tenant by granting the decree for eviction would outweigh the advantage to the Landlord. So, this crucial aspect could be characterised as a special instance in the matters arising out of Section 10(3)(c) of the Act. There should be a categorical finding by the statutory authorities that the hardship which may be caused to the Tenant by granting the decree for eviction would outweigh the advantage to the Landlord. Such a special prescription has been specifically provided for so as to avoid the unnecessary to the Tenant. Therefore, it has become imperative for the authorities under the case arising out of Section 10(3)(c) of the Act to give a specific finding whether the hardship which the Tenant is likely to suffer would outweigh the advantage to the Landlord or vice versa. Unless it is decided by the authorities, the enquiry in regard to the Petition arising under Section 10(3)(c) of the Act is vitiated.” 11. In B. KandasamyReddiar v. O. Gomathi Ammal, 1998 (2) CTC 687 (SC) : AIR 1998 SC 3235 , the Honourable Supreme Court has held that while dealing with the question of eviction of a Tenant on the ground of requirement of additional accommodation under Section 10(3)(c) of the Act, the consideration of the Proviso under Clause (e) of Section 10(3) which provides that Application for eviction on the said ground can be rejected by the Rent Controller if he is satisfied that hardship which may be caused to the Tenant by granting it will outweigh the advantage to the Landlord, is mandatory. 12. In the light of the decisions, Sri Ram Pasricha v. Jaganarth and others, AIR 1976 SC 2335 and Super Forgings & Steels v. Thyabally Rasuljee, 1996 (1) SCC 410, decision of this Court in Sherwood Educational Society, etc. v. Abid Namazie & others, 1997 (1) LW 323 , it has been made clear that in Revision cases, this Court cannot reappreciate the evidence as a Court of Appeal. If the decision is based on materials and that reason could be arrived on those materials, for the purpose of arriving at a different conclusion, the evidence cannot be re-read or re-appreciated by this Court in the Revision. 13. If the decision is based on materials and that reason could be arrived on those materials, for the purpose of arriving at a different conclusion, the evidence cannot be re-read or re-appreciated by this Court in the Revision. 13. Learned Counsel appearing for the Respondents drew the attention of this Court to the aforesaid finding of the Court below that the Rent Controller has categorically found that the alleged additional accommodation for the Respondents 2 and 3 is a bona fide one and also the fact that the Revision Petitioner/Tenant has another residential rented building, in the area nearby the petition premises and submitted that after the aforesaid finding, learned Rent Controller should have decided the relative hardship only in favour of the Respondents/Landlords and not in favour of the Petitioner/Tenant. 14. This Court in the decision, Noor Ahmed v. Ramasamy, 2003 (2) MLJ 604 has held that the Petition for additional accommodation filed by the Landlord on the allegation of scarcity of space, when the Landlord has established that his requirement is bona fide, Tenant is liable to be evicted under Section 10(3)(c) of the Act. It is not in dispute that the Rent Control Proceedings are summary in nature and that the Rent Control Court is not a Civil Court, hence, the Rent Controller has to weigh the evidence available on record to find out the bona fide reasons stated by the Landlord and the relative hardship in the light of the decisions referred to above. 15. In Andal, N. and others v. M. Salim and another, 2000 (1) LW 608 , this Court has held that the Court will be unjust in holding that the Landlord must adjust somehow or other in the accommodation available to him and it would be too much to direct Landlord to do business in some other locality in order to protect the interest of the Tenant. 16. In Ameena Beebi alias Jamurthu Begum v. Khaja Mohideen, 2000 (2) MLJ 196 , this Court observed that it cannot be held that the specific pleadings regarding comparative hardship is a mandatory requirement. 17. In the instant case, so far as the bona fide requirement is concerned, the learned Rent Controller and the learned Rent Control Appellate Authority have concurrently held that the Respondents/Landlords plea for additional accommodation under Section 10(3) (c) is bona fide. 17. In the instant case, so far as the bona fide requirement is concerned, the learned Rent Controller and the learned Rent Control Appellate Authority have concurrently held that the Respondents/Landlords plea for additional accommodation under Section 10(3) (c) is bona fide. The plea of eviction by the Respondents/Landlords was rejected by the learned Rent Controller, only on the basis of relative hardship caused to the Petitioner/ Tenant, however, the view was reversed by the learned Rent Control Appellate Authority. In such circumstances, it is the duty of this Court to ascertain whether the aforesaid views expressed by the Courts below is based on evidence available on record. In the instant case, the learned Rent Controller has specifically stated that the Petitioner/Tenant is having another rented residential premises and he has stated that the premises relating to this R.C.O.P is being used for residential as well as nonresidential purposes. As far as the residential portion is concerned, the finding of the Rent Controller cannot be justified in deciding the relative hardship in favour of the Petitioner/Tenant, since as per the concurrent concurrent findings, the additional accommodation required by the Respondents/Landlords is bona fide and the Petitioner/Tenant is having another residential premises in the same area, nearby the petition mentioned premises. In such circumstances, I am of the view that the finding of the Rent Controller is erroneous and that was rightly reversed by the Rent Control Appellate Authority, based on the evidence available on record. 18. It is not in dispute that the schedule mentioned property in the R.C.O.P. is also a residential portion at No.12, Eswaran Koil Street, Ground Floor, West Mambalam Chennai-600 033. On the aforesaid circumstance, I am of the view that there is no error or infirmity in the impugned Judgment and Decree passed by the learned Rent Control Appellate Authority in reversing the order and decretal order passed by the Rent Controller and granting decree as prayed for by the Respondents/Landlords, which warrants no interference by this Court in this Civil Revision Petition, hence, the Civil Revision Petition is liable to be dismissed. 19. In the result, this Civil Revision Petition is dismissed. 19. In the result, this Civil Revision Petition is dismissed. However, the Petitioner/Tenant is permitted to vacate the premises and hand over the possession to the Respondents/Landlords before the end of July 2010, on filing an undertaking affidavit within ten days from the date of receipt of a copy of this order to vacate the premises on or before the said date without costs. If undertaking affidavit is not filed within 10 days from the date of receipt of a copy of this order, the Respondents/Landlords will be at liberty to proceed with the order passed by the Court below to evict the Petitioner/Tenant from the premises forthwith. In such case, the Respondents/Landlords will be entitled to costs from the Civil Revision Petitioner.