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2010 DIGILAW 2204 (MAD)

S. Loganathan v. Hussain Bi @ Fathimaunnissa

2010-05-26

M.VENUGOPAL

body2010
Judgment :- The Civil Revision Petitioner/Appellant/Respondent/ Tenant has preferred this Civil Revision Petition as against the order dated 31.10.2008 in R.C.A.No.204 of 2008 passed by the VIII Judge, Small Causes Court, Chennai. 2. The Learned Appellate Authority viz., VIII Judge, Small Causes Court, Chennai, while passing orders in R.c.A.No.204 of 2008 dated 31.10.2008, has among other things observed that ... The Respondent/Landlady required the petition premises, which is non-residential nature for parking her sons car and further she also required for nonresidential purpose only. Further, there is no evidence on the side of the tenant that the requirement of the landlady lacks bonafide and resultantly, held that the Respondent/ Landlady bonafidely required the petition premises for her sons own use and occupation and thereby confirmed the order dated 10.10.2007 in R.C.O.P.No.465 of 2007 passed by the Learned Rent Controller viz., XV Judge, Small Causes Court, Chennai. 3. According to the Learned Counsel for the Revision Petitioner/Tenant, the findings of the Learned Rent Controller dated 10.10.2007 in R.C.O.P.No.465 of 2007 and the findings of the Learned Appellate Authority dated 31.10.2008 in R.C.A.No.204 of 2008 were untenable and baseless one because of the fact that the Authorities had failed to appreciate an important fact that the Rent Control Original Petition was filed for the purpose of parking of the vehicle of the Respondent/Petitioners son in the petition premises. 4. Also, the Authorities below had failed to consider that the petition mentioned premises was not adapted for keeping the vehicle as provided under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. But on the contrary, the same was exclusively used for a non-residential purpose for running a lathe machine work by the Respondent/Petitioner and all the tools are housed in the said premises. 5. The Learned Counsel for the Revision Petitioner/ Tenant contends that the Learned Appellate Authority and the Rent Controller had failed to consider that the RCOP petition was filed under Section 10(3)(a)(ii), Section 10(3)(a)(iii), or Section 10(3)(c) of the Rent Control Act for eviction of the Revision Petitioner/Tenant for the purpose of parking of vehicle of the son of the Respondent/Petitioner is on the face of it not sustainable in the eye of law because of the fact that filing of the petition on an alternative ground for the same cause and reason is not a valid one. 6. 6. It is the further contention of the Learned Counsel for the Revision Petitioner/Tenant that the petition mentioned premises is 120 square feet, which is located in an elevated area, much above the road level and seeking the premises for the purpose of parking of a car with sinister motive lacking bonafides and the same is a baseless one. 7. Continuing further, the Learned Counsel for the Revision Petitioner/Tenant submits that the Rent Control Original Petition filed by the Respondent/Petitioner on the grounds of owners occupation and additional accommodation are mutually an exclusively one inasmuch as filing of the petition on both the grounds is untenable in law. 8. Besides the above, it is the contention of the Learned Counsel for the Revision Petitioner/Tenant that the Respondent/Petitioner is residing in the first floor of the property and she requires the premises for parking of the vehicle of her son in the ground floor and that the additional accommodation will be the appropriate relief and that the contra findings of both the Authorities are absolutely unsustainable in law. 9. Lastly, it is the contention of the Revision Petitioner/Tenant that the Respondent/Tenant is having another property available in the same ground floor of the building and that choosing the Revision Petitioner/Tenant alone for the said purpose is tainted with an intention only for the purpose of dislodging the possession of the Revision Petitioner, which is a clear abuse of the process of law. 10. In effect, the contention of the Learned Counsel for the Revision Petitioner/Tenant is that both the Authorities have not adverted to the factual and legal aspects of the matter in a proper perspective which has resulted in miscarriage of justice and therefore, prays for allowing the Civil Revision Petition in the interest of justice. 11. Per contra, the Learned Counsel for the Respondent/ Landlady submits that the Respondent/Petitioner requires the shop in the occupation of the Revision Petitioner/Tenant for keeping her sons car and this bonafide requirement of the Respondent/Landlady has not been disputed by the Revision Petitioner/Tenant and therefore, the Respondent/Landlady is entitled to seek the relief against the Revision Petitioner/ Tenant under Section 10(3)(a)(ii) of the Act. 12. 12. Further, it is the contention of the Learned Counsel for the Respondent/Landlady that merely because the Section 10 (3)(a)(iii) is mentioned and also the word and/or Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18/60 is also mentioned in the RCOP petition No.465 of 2007 filed by the Respondent/Landlady, it does not mean that the petition under Section 10(3)(a)(ii) is not maintainable in law. 13. In fact, the Learned Counsel for the Respondent/ Landlady submits that both the Authorities had come to a correct conclusion in holding that the shop portion mentioned in the schedule of the petition is required by the Respondent/Landlady for the purpose of parking her sons car and such a finding of fact recorded by the Authorities concerned need not be disturbed by this Court at this stage sitting in Revision. 14. The Learned Counsel for the Revision Petitioner/Tenant cites the decision of Honble Supreme Court in Shri Balaganesan Metals V. M.N.Shanmugham Chetty and others (1987) 2 Supreme Court Cases 707 wherein the Honble Supreme Court has observed as follows: "Where the landlord-respondents let out the ground floor of a one-storied building to the tenant-appellant and retained the first floor of it for own residential use, the ground floor occupied by the tenant cannot be said to be a distinct and separate unit for the purposes of Section 10 (3)(c). Therefore, the landlord was entitled to seek eviction of the tenant under Section 10(3)(c)." 15. He also relies on the decision of Honble Supreme Court in B.Kandasamy Reddiar V. O.Gomathi Ammal (1998) 7 Supreme Court Cases 138 wherein it is held that Taking into consideration the first first proviso to Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 is held to be mandatory and further it is observed that before allowing eviction petition on grounds of requirement of additional accommodation, Rent Controller should have considered whose hardship is greater, tenants or landlords and omission to do so before passing the eviction order would be fatal. 16. He also brings it to the notice of this Court to the decision of Honble Supreme Court in J.Jermons V. Alimmal and others 1999 (III) CTC 697 wherein it is held that Eviction on the grounds of additional accommodation requires special pleadings regarding occupation of part of buildings and comparative hardship etc. 16. He also brings it to the notice of this Court to the decision of Honble Supreme Court in J.Jermons V. Alimmal and others 1999 (III) CTC 697 wherein it is held that Eviction on the grounds of additional accommodation requires special pleadings regarding occupation of part of buildings and comparative hardship etc. and also that the additional facts are necessary to support additional grounds. 17. However, the Learned Counsel for the Respondent/ Landlady cites the decision of Honble Supreme Court in Kusum Devi V. Mohan Lal (dead) by L.Rs. 2009(3) Supreme 847 at page 855 wherein it is held as follows: "There is no provision in the Act preventing a landlord from raising grounds enumerated under clauses (e) and (g) of sub-section (1) of Section 12 of the Act together in a suit for eviction. In a given case like the present one, raising both the grounds together, what the court is required to see is whether the bona fide requirement of the landlord to occupy the premises for his own occupation has been proved or not. Once the bona fide requirement under clause (e) is held to have been proved, the mere fact of having simultaneously pleaded in the plaint that the suit premises, having become unsafe or unfit for human habitation, are bona fide required for carrying out repairs, which could not be carried out without the premises being vacated, does not affect the bona fide requirement of a landlord under clause (e). Therefore, once bona fide requirement of a landlord for own occupation stands established and a decree for eviction is granted under the relevant provision, it is well within the right of the landlord to either move to the building without or after carrying out repairs." 18. He brings it to the notice of this Court to the decision of Honble Supreme Court in Kanniammal V. Chellaram (2002) 2 MLJ 167 at page 168 wherein it is among other things held thus: "In other words, the need for additional accommodation is for extending the user of the building by the landlords to the leased portion for the same purpose for which the portion not leased out is being used. It is not the requirement of Sec.10(3)(c) that the nature of requirement of the landlord and the nature of the user of the leased portion by the tenant should coalesee. It is not the requirement of Sec.10(3)(c) that the nature of requirement of the landlord and the nature of the user of the leased portion by the tenant should coalesee. That being the position of law, Sec.10 (3)(c) would not cover the present case where the landlady is occupying the non-leased out portion of the building for residential purpose and the requirement of additional accommodation in another part of the building is for a non-residential purpose. The appellant landlady rightly did not seek eviction of the tenant under Sec.10(3)(c) and the High Court is not right in forming an opinion that the landlady could have maintained the application for eviction only under Sec.10(3)(c) of the Act." 19. The Learned Counsel for the Respondent/Landlady cites the decision of Honble Supreme Court in J.Kumaradasan Nair and another V. IRIC Sohan and others 2009 AIR SCW 1921 wherein it is held that mentioning of wrong provisions or non-mentioning of any provision of law would by itself be not sufficient to take away jurisdiction of Court if it is otherwise vested in it in law. 20. On the side of the Respondent/Landlady, the Learned Counsel cites the decision in Rishi Kumar Govil V. Maqsoodan and others 2007 AIR SCW 2306 at page 2311 wherein it is held that considering the factual findings recorded by the Prescribed Authority, Appellate Authority and analysed by the High Court, there is no scope for any interference in this appeal which is accordingly dismissed. 21. The Learned Counsel for the Respondent/Landlady draws the attention of this Court to the decision in Kunhamma V. Akkali Purushothaman and others 2007 AIR SCW 2493 wherein it is held that No attempt made by tenant to ascertain availability of another suitable building to which he could shift and the benefit of exception made by Proviso 2 to Section 11(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act (2 of 1965) is not available. 22. 22. Lastly, the Learned Counsel for the Respondent/ Landlady places reliance on the decision of this Court in M.Meeran Mohideen and another V. N.Jayaprakash Narayanan and others (2002) I MLJ 522 wherein it is held that if the parties have understood the case and the tenants are aware of the landlords requirement defective or vague pleadings are not fatal to the case and also it is held that where a single building has different door numbers, landlord can ask for additional accommodation. 23. At this stage, it is significant for this Court to recall that the Respondent/Landlady in her petition in R.C.O.P.No.465 of 2007 at paragraph 4 has made the following averments: "The petitioner states further that the petitioners son a.Abdul Majid who is working as Dy.Manager (sales) in Trans Car India (P) Ltd., 576, Mount Road, Chennai – 6 has recently purchased a Car namely Tata Indica DLG (wrongly mentioned as DLJ in the notice) with registration NO.TN-07-AU-6768. The petitioner states that the office in which her son is working, is not allowing her son to keep his car in the office premises. They have been repeatedly asking him to take away the Car from the office premises. Therefore the petitioner requires the shop in the occupation of the respondent herein for keeping her sons car therein. The petitioner does not own any other premises nor is she in occupation of a non-residential portion in the above premises or any where else in the City of Chennai. When it was brought to the respondents notice the respondent agreed to vacate and surrender vacant possession to the petitioner after some time. The petitioner gave three months time in the first instance to the respondent to surrender possession and the same was extended on three occasions in the past. Taking advantage of the leniency the respondent has been postponing surrendering of his portion to the petitioner." 24. The petitioner gave three months time in the first instance to the respondent to surrender possession and the same was extended on three occasions in the past. Taking advantage of the leniency the respondent has been postponing surrendering of his portion to the petitioner." 24. The Revision Petitioner/Tenant in his counter to the RCOP petition has stated as follows: All of a sudden the Petitioners younger son /S.Abdul Majid created a scene before the petition premises and forced the respondent to vacate the premises which took place in the month of October 2006 and the said S.Abdul Majid forced his mother to file this false and frivolous / petition and the Petitioner could not evade the request of her son and has further taken a denial stand that the Respondent/ Landlady requires the petition premises for bonafide reason. 25. It is to be noted that Section 10(3)(a)(ii) of the Act speaks of a non-residential building which is used for the purpose of keeping a vehicle or adapted for such use as per decision Balakrishnan Manon V. Govindan, 92 LW 56 at page 58. Further, as per Section 10(3)(a)(ii) of the Act, two conditions are to be fulfilled. (1) That the non-residential building should be used for the purpose of keeping a vehicle or adapted for such use; (2) The landlord or any member of his family requiring the said building is not occupying any such building and it is admitted that the said building is used for the purpose of parking vehicles, the landlord is entitled to an order of eviction as per decision C.Kuppuswamy Naidu V. Krishtappa Chetty (died) 1985 (1) MLJ 92 at page 96. 26. As a matter of fact, the ownership of the vehicle ought not to come in the way of asking for the portion in question for a landlords use under Section 10(3)(a)(ii) of the Act as per decision Tuli Brothers V. G.R.Srinivasalu 1985 1 MLJ 230 at page 232. 27. When the landlord shows a prima facie case, the presumption is the requirement of the premises for parking his car is bonafide as per decision Dali Chand V. B.S.Ramalingam 1999 MLJ (Supp.) 389. 28. It cannot be gainsaid that under the Act it is quite clear that the premises used for keeping a vehicle is treated as a non-residential building. When the landlord shows a prima facie case, the presumption is the requirement of the premises for parking his car is bonafide as per decision Dali Chand V. B.S.Ramalingam 1999 MLJ (Supp.) 389. 28. It cannot be gainsaid that under the Act it is quite clear that the premises used for keeping a vehicle is treated as a non-residential building. In considering the ambit of Section 10(3)(a)(ii) it cannot be contended that only a non-residential building that is already used for the purpose of keeping a vehicle could be claimed as per decision Jawantharaj Metha V. Ramachandra Chetty 78 LW Short Notes at page 65. 29. In the decision Panduranga Padayachi V. Dhanakoti Ammal 1978 TLNJ 54 at page 55 it is held that where the landlady bonafide requirements the building for keeping her car, the fact that space is it enough should not stand in the way of the Court ordering eviction because it is not possible to order eviction of a part of a building and there is no provision in the Act and none had been pointed out that a part of the building can be recovered. 30. A building need not be used as a Garage at the time of filing of the petition. It may be either used as a Garage or alternatively it may be of such structural design that it can be used as a Garage with certain adaptations as per decision Mrs.Thangam V. P.K.Madhavan 1986 TLNJ 49 at page 50. 31. As the landlord can apply for additional accommodation for a non-residential building under Section 10 (3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act only for the purpose of carrying on a business he cannot under the provision apply for the purpose of keeping his vehicle as per decision Jawantharaj Metha V. Ramachandra Chetty 78 LW Short Notes at page 65. 32. Before the Learned Rent Controller, the Respondent/ Petitioner/Landladys son has been examined as P.W.1. 32. Before the Learned Rent Controller, the Respondent/ Petitioner/Landladys son has been examined as P.W.1. In his evidence P.W.1 has deposed that he is employed as Deputy Manager in Trans Car India Private Limited at Anna Salai and that he has purchased own car and for parking the said car he requires the petition mentioned building and his mother (Respondent/Landlady/Petitioner) does not possess any other building other than the petition mentioned building and that his company has issued Ex.A3-Letter dated 16.10.2006 to him mentioning that the Company has space constraint for parking of service/customers vehicle in their showroom premises and that he has been informed regarding this not to park his vehicle in the office premises on several repeated verbal reminders and that he has taken leniency given to him and as such, he has been given a months time from the date of this letter to arrange an alternative place for parking his vehicle etc. 33. It is the evidence of P.W.1 (in his cross examination) that apart from the petition mentioned property in another portion of the petition mentioned property another tenant is conducting Horlicks Business. 34. It is the evidence of R.W.1 (Revision Petitioner/ Tenant) that near the petition mentioned property, the Respondent/Landlady owns a workshop and that place is sufficient for her to keep the vehicle. However, R.W.1 in his cross examination has stated that near the petition mentioned property one Ahamed Hussain is running the workshop. 35. Significantly, R.W.1/Tenant in his cross examination has categorically admitted that the Respondent/Petitioner/ Landlady is not owning any other building, other than the petition mentioned premises. 36. As far as the present case is concerned, the Revision Petitioner/Tenant in his cross examination has specifically admitted that the Respondent/Petitioner/ Landlady does not own any other building other than the petition mentioned premises. It is to be remembered that the Revision Petitioner/Tenant cannot dictate either terms to the Respondent/Petitioner/Landlady or how else she can adjust without evicting the tenant. A duty is caused on the Learned Rent Controller/Appellate Authority or a Court of Law to find out where in a given case a landlord or landlady establishes a prima facie case in regard to the recovery of the petition mentioned building for keeping the vehicle. 37. In determining a petition for eviction under Section 10(3)(a)(ii) of the Act a restricted meaning cannot be given to the term adapted. 37. In determining a petition for eviction under Section 10(3)(a)(ii) of the Act a restricted meaning cannot be given to the term adapted. The meaning to be given is adaptable. After all the premises in issue must be fit for use as Car Shed and premises which could be remodeled or completed and made fit for the purpose of keeping vehicle can be said to be the term adapted for such use as per decision Mohammed Jamal.S V. Sureka 2002 (1) CTC at page 65. 38. In the instant case on hand, the Respondent/Landlady requires the shop in the occupation of the Revision Petitioner/Tenant has mentioned in the schedule of the RCOP petition for keeping her sons car. It is also admitted by the Revision Petitioner/Tenant that Respondent/Landlady does not own any other premises other than the petition mentioned building. Therefore, when the Respondent/Petitioner/Landlady is not occupying any such building and since she requires the shop in the occupation of the Revision Petitioner/Tenant for keeping her sons car and also taking note of the fact that her son viz., P.W.1 has been issued with Ex.P.3-Letter dated 16.10.2006 that he has to arrange for an alternative place for parking his vehicle failing which the Company will be forced to park his vehicle outside the office premises where he is employed, this Court comes to an inevitable conclusion that the petition filed by the Respondent/ Landlady under Section 10(3)(a)(ii) of the Act is perfectly maintainable in law and as such, she is entitled to get an order of eviction against the Revision Petitioner in accordance with law and viewed in that perspective, the Civil Revision Petition fails. 39. 39. Before parting with the case, this Court points out that since the Respondent/Landlady in her petition has required the shop portion in the occupation of the Revision Petitioner/Tenant for keeping her sons car, the correct provision applicable to the RCOP petition filed by her is only 10(3)(a)(ii) of the Act and not 10(3)(a)(iii) Need for the Business of the Landlord and/or 10(3)(c) Recovery of Building for Additional Accommodation of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 since the mentioning of these two provisions are only unnecessary and on the facts of the case, they do not apply at all to the requirement of the Respondent/Landlady as per the averments made by her in the RCOP petition No.465 of 2007 on the file of the Learned XV Judge, Small Causes Court, Chennai, as opined by this Court. 40. In short, the mentioning of Section 10(3)(a)(iii) and/or 10(3)(c) of the Act do not affect the case of the Respondent/Landlady in any manner whatsoever, in the considered opinion of this Court. 41. Be that as it may, in the light of detailed ratiocination made by this Court as mentioned supra, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Resultantly, the order of the Learned Appellate Authority viz., VIII Judge, Small Causes Court, Chennai dated 31.10.2008 in R.C.A.No.204 of 2008 and the order of the Learned Rent Controller, viz., XV Judge, Small Causes Court, Chennai dated 10.10.2007 in R.C.O.P.No.465 of 2007 are hereby affirmed for the reasons assigned by this Court in this Revision. The Revision Petitioner is directed to hand over vacant possession of the shop portion mentioned in the schedule of the petition within two months from the date of receipt of copy of this order. Consequently, connected miscellaneous petition is closed.