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2010 DIGILAW 2672 (MAD)

S. Selva Singh v. V. Gnanesh

2010-07-02

G.RAJASURIA

body2010
Judgment 1. Inveighing the order dated 04.08.2009, passed in RCA No.364 of 2008 by the VIII Judge, Small Causes Court at Chennai, reversing the order dated 04.04.2008 passed in RCOP No.449 of 2007 by the XV Judge, Small Causes Court at Chennai, this civil revision petition is focussed. 2. Heard both sides. 3. Shorn of unnecessary details, the germane facts for the disposal of this revision would run thus: The revision petitioner herein being the landlord of the demised premises, filed RCOP for evicting the respondent/tenant on two grounds, one on the ground of wilful default in paying the rent by the tenant and another on the ground of requiring the premises for his business purpose. The Rent Controller rejected the first ground, however, upheld the aforesaid second ground and ordered eviction. Being aggrieved by the same, RCA was filed by the tenant. The appellate Court reversed the order of the Rent Controller, by holding that the requirement of the landlord for personal occupation was not bona fide. Whereupon, this revision has been filed on various grounds, the gist and kernel of them would run thus: The appellate authority failed to take into consideration the real purport of Ex.P7. The landlord consequent upon Ex.P7, purchased the demised premises and thereafter, filed the RCOP seeking eviction on the ground of his personal occupation. The learned appellate authority in his judgment even though held that all the ingredients of Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, were satisfied, yet went to the extent of holding that the important ingredient, namely bona fide requirement was not satisfied. Absolutely there was nothing on record to show and evince that the landlord lacks bona fide in seeking eviction on the ground of his personal occupation. He has been running grocery shop in a tenanted premises under a Landlord admittedly and that his landlord has been pressurising him to vacate the premises. In such a case, simply because the revision petitioner herein could not establish his ground that the respondent/tenant was guilty of wilful default in paying the rent, that does not mean that his one other ground, namely seeking eviction on the ground of personal occupation should also be termed as untenable. In such a case, simply because the revision petitioner herein could not establish his ground that the respondent/tenant was guilty of wilful default in paying the rent, that does not mean that his one other ground, namely seeking eviction on the ground of personal occupation should also be termed as untenable. Accordingly, the revision petitioner prays for setting aside the order of the appellate authority and for restoring the order of the learned Rent Controller in ordering eviction on the ground of personal occupation of the landlord. 4. The learnedcounsel for the petitioner reiterating the grounds of revision would put forth and set forth his argument thus: The revision petitioner/landlord is occupying a tenanted premises and running his business there. Even though certain allegations have been made by the respondent herein that he is not actually occupying personally the said tenanted premises, the lower appellate Court disbelieved it and decided as against the respondent/tenant herein. After giving findings mostly in favour of the landlord, the appellate authority decided that the landlord was lacking bona fides in seeking eviction on the ground of personal occupation purely on the ground that there was time lag in filing the RCOP. Mere time gap between issuing of the notice of eviction as against the tenant and the filing of the RCOP would not constitute laches or lack of bona fide on the part of the landlord. Once it was found that the landlord as on the date of RCOP was in need of the premises, the appellate authority taking into account the objective circumstances, should have dismissed the appeal filed by the tenant, confirming the findings of the Rent Controller. Accordingly, the learned counsel for the petitioner would pray for allowing this revision petition. 5. Per contra, by way of refuting and contradicting the arguments put forth on the side of the landlord, the learned counsel for the tenant inviting the attention of this Court to the various portions in the typed set of papers including the judgment of the appellate Court would advance his arguments, the warp and woof of them would run thus: The appellate authority correctly and convincingly analysed the facts and held that the landlord of the landlord herein, so to say the revision petitioners landlord did not take any steps to evict the revision petitioner, who happened to be a tenant under him, even though much time had elapsed. There is no presumption that his requirement is bona fide and it was for him to prove objectively his bona fide requirement. Here, he filed the RCOP including therein additionally the ground of personal occupation, because he could not get enhanced rent from the tenant and such a fact is writ large. His ground, namely wilful default in payment of rent by the tenant was turned down by the Rent Controller and as against which no appeal was filed. That itself is indicative of the fact that the landlord accepted that his case on the ground of wilful default was not a genuine one. As such, the findings of the appellate authority that there was no genuineness or bona fide intention on the part of the landlord in filing the application need not be interfered with in revision. Accordingly, he prays for the dismissal of this revision petition. 6. The point for consideration is as to whether the finding of the Appellate Authority that there was no bona fide requirement of the landlord in seeking eviction of the tenant from the demised premises on the ground of personal occupation, is justifiable or not? and whether there is any infirmity in the order of the appellate Court? 7. The learned Advocates on both sides cited several decisions in support of their contentions. It is therefore, just and necessary to refer to those decisions. On the side of the revision petitioner, the following decisions were cited and from among them, I would like to extract only a few excerpts. 1. 1950 LW 17 2. 1989 (II) MLJ 28 [M.Aishath Najiya v. M/s Lalchand Kewalram and others] 3. 1997 MLJ 431 [Indian Organic Chemicals Limited, Madras v. Radha Venkataraman] 4. 1996 LW 677 [N.M.H.Rasheeda Bivi v. V.R.Sreepathy] 5. (1998) MLJ 270 [M/s Boston and others v. S.A.Akbar and others] 6. 2000 3 LW 205 [Lakshmidas Ved v. Parag Mawani] 7. (2003) 2 MLJ 704 [Pooludaiyar Chettiar v. Gani] 8. (2004) 2 MLJ 702 [A.LO.Gopal Sah, Chennai and others v. K.P.M.Musthaffa and others] 9. 2009 5 CTC 607 [J.Josephine Christobell v. P.Subramanian] 10. 2002 (2) CTC 415 [S.V.Janardanam and another v. D.Kivraj Sowkar and two others] 11. 1998 (III) CTC 679 [Sarla Ahuja v. United India Insurance Company Ltd.], an excerpt from it would run thus: "14. (2004) 2 MLJ 702 [A.LO.Gopal Sah, Chennai and others v. K.P.M.Musthaffa and others] 9. 2009 5 CTC 607 [J.Josephine Christobell v. P.Subramanian] 10. 2002 (2) CTC 415 [S.V.Janardanam and another v. D.Kivraj Sowkar and two others] 11. 1998 (III) CTC 679 [Sarla Ahuja v. United India Insurance Company Ltd.], an excerpt from it would run thus: "14. The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation, the Rent controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. If is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself." 12. (2004) 1 MLJ 458 [Ravichandran and others v. Natarajan Nadar and others], an excerpt from it would run thus: "11. In the instant case, the premises in question is a non-residential one. The landlord was actually running a grocery shop in a rented premises on the date of filing of the petition. He was not occupying any other non-residential building of his own. The landlord in order to show the bona fide has to only establish the genuine present need for own occupation, and he need not prove that hew as in danger of being evicted from the rented premises. The landlord is carrying on his business in a rented premises, and he has also deposed that his landlord has been demanding him to vacate the same. It is true that the landlord of the petitioner has not issued any notice calling for eviction. But, it did not mean that the demand for eviction was false. The landlord is carrying on his business in a rented premises, and he has also deposed that his landlord has been demanding him to vacate the same. It is true that the landlord of the petitioner has not issued any notice calling for eviction. But, it did not mean that the demand for eviction was false. It is well settled position of law that in a case like this, the landlord who is carrying on his business in a rented premises, need not prove the danger of his being evicted from the said rented premises. In the instant case, the landlord has established the genuine present need for his own occupation." 8. Thelearned counsel for the tenant would cite the following decision: AIR 1988 SC 1060 [Hameedia Hardware Stores v. B.Mohan Lal Sowcar], an excerpt from it would run thus: "13. We are of the view that by merely proving that the premises in question is a non-residential building and that the landlord or any member of his family is not occupying for the purpose of a business which he or any member of his family is carrying on any residential building in the city, town or village concerned which is his own, the landlord cannot in the context in which Section 10(3) (a)(iii) appears get a tenant evicted. He must show in view of clause (e) of Section 10(3) that his claim is bona fide. The word claim means "a demand for something as due" or "to seek or ask for on the ground of right" etc. In the context of Rent control Law which is enacted for 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. Any decision on the question whether a landlord deserves to be put in possession of a premises in the occupation of a tenant should naturally depend upon the bona fides of the landlords requirement or need. The word claim in clause (e) of Section 10(3) of the Act should, therefore, be construed as the requirement of the landlord or his deservedness. The word claim in clause (e) of Section 10(3) of the Act should, therefore, be construed as the requirement of the landlord or his deservedness. Deserve means to have a rightful claim or a just claim. Since clause (e) of Section 10(3) of the Act is also applicable to a petition filed under sub-clause (iii) of Section 10(3)(a) of the Act it becomes necessary to examine whether the requirement of the landlord is bona fide. Otherwise a landlord will be able to evict a tenant to satisfy his whim by merely proving the ingredients mentioned in Section 1093)(a)(iii) of the Act.........." The said decision was referred to and followed by a learned Judge of this Court in the judgment reported in 1996 (I)CTC 492 [Gajendra Sha and another v. M.Govindarajan]. 9. A perusal of the long list of judgments cited on the landlords side as well as the two judgments cited on the side of the tenant would make this Court to formulate the view that absolutely there is no disagreement among the courts in laying down the law from time to time. The Honble Apex Court as well as this Court consistently held that the ingredient, so to say the bona fide of the landlord should necessarily be considered and scrutinised strictly before ordering eviction on the ground of personal occupation. 10. I recollect the maxim Acta exteriora indicant interiora secreta : External acts indicate the secret mind. There is also one adage that even a devil cannot understand what is in the heart of a person. As such, they would exemplify and expatiate, display and demonstrate that the Court should assess objectively the evidence and should not indulge in conjectures and surmises and assume any existence of facts. I am fully aware of the fact that in some of the decisions, epithets such as genuineness, honesty etc. also have been used, but ultimately what the Court is expected to see is as to whether objectively any bona fide intention is there on the part of the landlord in seeking eviction on the ground of personal occupation. Similarly it has to be seen as to whether from the plea of the tenant, any mala fide intention on the part of the landlord could be seen objectively and that should not be lost sight of. Similarly it has to be seen as to whether from the plea of the tenant, any mala fide intention on the part of the landlord could be seen objectively and that should not be lost sight of. I also recollect the maxim that it is not enough justice is done but, it should be seen to be done. In other words, objectivity and not subjectivity is the hall mark of rendering justice. As such, in order to understand whether the landlord is having a bona fide or mala fide intention, the Court should be guided by objectivity. As such, here the facts placed before the Rent Controller, if analysed, it is crystal clear that the landlord is running grocery business in a tenanted premises under a person and he is having no other non residential building of his own in Madras City where the demised premises in this case, is situated. 11. The question arises as to whether he was bona fide in seeking eviction of the tenant on the ground of his personal occupation. The appellate authority was very much carried away by the time gap. The appellate authority in paragraph 19 adverted to the fact that even though Ex.P7, the notice issued by the revision petitioners landlord to the revision petitioner to evict the premises was as early as on 24.07.2004, he had chosen to file the RCOP No.449 of 2007 only in the year 2007 so as to evict the revision petitioners tenant, namely the respondent herein from the demised premises. The fact remains that the revision petitioner issued notice to the respondent herein only on 110. 2006 and thereafter, he filed the RCOP. The pertinent point as correctly pointed out by the counsel for the landlord is that after receipt of Ex.P.7 dated 24.07.2004, the revision petitioner with the avowed intention to vacate his tenanted premises and to have a non residential building of his own for shifting his business, purchased the demised premises herein on 112. 2004 so to say five months after Ex.P7 and found that the respondent herein at that time was in occupation of the demised premises herein. Hence, he subsequently issued notice on 110. 2006 for evicting him and thereafter, filed the RCOP. 2004 so to say five months after Ex.P7 and found that the respondent herein at that time was in occupation of the demised premises herein. Hence, he subsequently issued notice on 110. 2006 for evicting him and thereafter, filed the RCOP. As such, cogently by taking into account the relevant facts if the matter is viewed, I could see no mala fide intention or lack of bona fides on the part of the revision petitioner/landlord, in filing the RCOP and there are no laches, which could be fastened on him. The Court cannot expect that the revision petitioner soon after purchasing on 112. 2004, the demised premises which is under the occupation of the respondent should have filed the RCOP for evicting him. The decision cited on the side of the landlord would demonstrate that the landlord is not bound to prove that the premises in which the landlord is a tenant faced eviction from his landlord. However, the learned counsel for the respondent/tenant herein would argue that had the landlord/revision petitioner herein simply came to Court with the plea that he wanted the premises for his own purpose, the matter would have been different, but he came to Court with a specific plea that the revision petitioners landlord pressurised him to evict, but he had not proved it. The appellate authority also expected that in order to prove Ex.P7, the revision petitioner herein should have examined the author of Ex.P7 so to say the revision petitioners landlord. In my opinion, such an expectation is a far fetched one. 12. I recollect and call up the proposition that the preponderance of probabilities should be taken into account in adjudicating civil cases. Here, after receipt of Ex.P7 dated 24.07.2004, the very fact that the revision petitioner purchased the demised property on 112. 2004 would speak volumes about his sincere and genuine desire to shift his business to a premises of his own. It is not as though the revision petitioner had been owning the demised premises herein even before the receipt of Ex.P7. All those important facts in my opinion have not been thoroughly gone into by the appellate authority and he simply considered in his judgment that there was a long time gap between Ex.P7 and the date of filing of RCOP. All those important facts in my opinion have not been thoroughly gone into by the appellate authority and he simply considered in his judgment that there was a long time gap between Ex.P7 and the date of filing of RCOP. The revision petitioner who on receipt of Ex.P7 purchased the demises premises herein cannot be expected to neck out the respondent immediately and the common course of events should also be borne in mind. Each one will have his own way in taking action to evict a tenant from the newly purchased premises. These are all common sense principles which the Court can very well understand and in my opinion the three years gap which was pointed out by the appellate Court in the peculiar facts and circumstances of the case can never be taken as one pointing out towards the mala fide intention or lack of bona fides on the part of the landlord in seeking eviction on the ground of personal occupation. 13. The learned counsel for the revision petitioner also would submit that in the deposition P.W.1 the revision petitioner stated that his landlord had been incessantly calling upon him to vacate the premises concerned. Simply because the revision petitioners landlord was somewhat adjustable and passive and has not swung into taking legal action, that cannot be commented upon by the respondent/tenant adversely as against the revision petitioner herein. 14. The learned counsel for the tenant would submit that the Rent Controller found that the ground of wilful default in paying rent by the tenant was not upheld. When this Court posed the question as to whether the Rent Controller has given a specific finding that such a plea was false, the learned counsel for the respondent would try to explain and expound that the landlord wanted higher rent to be paid by the tenant and that the higher rent having not been paid by him, the landlord filed such a petition invoking the said ground of personal occupation. It is one thing to give a finding that the plea is false and yet it is another thing to hold that the plea was not proved. It is one thing to give a finding that the plea is false and yet it is another thing to hold that the plea was not proved. Simply because appeal has not been preferred pressing on the ground of wilful default, no adverse inference could be drawn as against the landlord that his one other plea based on personal occupation should be taken as one actuated and geared by malice etc. As such, I am of the considered view that the appellate authority could have very well considered all these circumstances and confirmed the order of the Rent Controller, but he carved out an exception in respect of the ingredient, namely bona fides and held as though such bona fide on the part of the landlord in seeking eviction on the ground of personal occupation was lacking and reversed the order of the Rent Controller. 15. In the result, I am of the view that the order of the appellate court has to be set aside and the order of the Rent Controller has to be restored. Accordingly, this revision is allowed. No costs. Inasmuch as the respondent is running a business in the demised premises, I could grant six months time for the tenant to vacate the premises subject to the condition he pays rent regularly to the landlord and an affidavit by the tenant shall be filed to the effect.