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2010 DIGILAW 2738 (MAD)

R. Pragadesh v. N. V. Subramanian

2010-07-07

G.RAJASURIA

body2010
Judgment :- 1. Animadverting upon the order dated 12.2.2010 passed in R.C.A.No.333 of 2008 by the VIII Judge, (Appellate Authority), Small Causes Court, Madras, confirming the order dated 1.4.2008 passed in R.C.O.P.No.872 of 2007 by the XII Judge, Small Causes Court, Madras, this civil revision petition is focussed. 2. Niggard and bereft of unnecessary details, the germane facts for the disposal of this revision petition would run thus: (a) The respondent/landlord filed the R.C.O.P.872 of 2007 for evicting the revision petitioner/tenant on the following grounds: (i) Wilful default in paying the rent; (ii) Additional accommodation for expanding the defendants sons business in textile goods. (b) Before the trial Court, on the side of the respondent/landlord, his son S.Krishnasamy was examined as P.W.1 and Exs.P1 to P.11 were marked. On the side of the revision petitioner/tenant, he examined himself as R.W.1 and marked Exs.R1 to R76. (c) Ultimately, the Rent Controller rejected the ground of wilful default, but upheld the ground of additional accommodation and accordingly ordered eviction. (d) As against the said order of the Rent Controller, the appeal in RCA.No.333 of 2008 was filed by the tenant for nothing but to be dismissed by the appellate Court, confirming the order of the Rent Controller. 3. Being aggrieved by and dissatisfied with the orders of both the Courts below, this revision is focussed on various grounds. 4. The learned counsel for the revision petitioner/tenant reiterating the grounds of revision would advance his arguments thus: (i) Both the Courts below committed serious error in assuming as though P.W.1, so to say the landlords son has been carrying on business and that he wants additional accommodation, but absolutely there was no evidence much less clinching evidence to prove the factum of P.W.1 conducting business in any part of the building where the demised premises forms a part. (ii) Certain documents have been produced for the purpose of proving that P.W.1 was doing business, but those documents are all self-serving documents purely created and cooked up for the purpose of evicting the tenant by hook or crook. (iii) After the filing of the RCOP alone, P.W.1 got the Registration certificate concerning his alleged business from the Commercial Tax Department. (iv) If at all the landlord had intended to prove in a convincing manner his plea, then he could have very well produced authentic accounts bearing the seal of the Commercial Tax Department. (iii) After the filing of the RCOP alone, P.W.1 got the Registration certificate concerning his alleged business from the Commercial Tax Department. (iv) If at all the landlord had intended to prove in a convincing manner his plea, then he could have very well produced authentic accounts bearing the seal of the Commercial Tax Department. (v) By the time the enquiry was conducted in the RCOP, the landlord should have had voluminous accounts concerning P.W.1s alleged business and also documents evidencing the day-to-day transactions, but he had not chosen to produce any such clinching evidence, but on the other hand, patchy and scanty evidence in the form of Exs.P7 to P.11 were filed. (vi) The ingredients as contemplated under Section 10(3(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act have not been satisfied, but both the Courts below failed to take into account the said point. (vii) Trite the proposition of law is that the bona fide intention on the part of the landlord should be established before seeking eviction. But in this case, no such evidence objectively has been produced to prove the bona fide intention of the landlord. (viii) The very fact that the plea of the landlord to evict the tenant on the ground of wilful default was negatived, would speak volumes as to how the landlord approached the Rent Controller with false facts. (ix) The landlord is having enough space in the second floor itself and he could have very well utilised such space for the alleged business use of his son, but without taking steps to use the said place, which is vacant, the landlord has chosen to file the RCOP, so as to evict the tenant somehow or other. (x) During the pendency of the RCOP one other tenant under the same landlord vacated a portion in the same building and instead of the landlord accommodating his sons alleged non-residential business in that place, he simply persists in evicting the tenant. Accordingly, the learned counsel for the revision petitioner/tenant would pray for setting aside the orders of both the Courts below and for dismissing the RCOP itself. 5. Accordingly, the learned counsel for the revision petitioner/tenant would pray for setting aside the orders of both the Courts below and for dismissing the RCOP itself. 5. By way of torpedoing and pulverising the arguments as put forth on the side of the revision petitioner/tenant, the learned counsel for the respondent/landlord would advance his arguments, the nitty-gritty, the gist and kernal of them would run thus: (i) Both the Courts below elaborately dealt with the matter and consistently arrived at the conclusion that the requirement of the landlord on the ground of additional accommodation for expanding his sons business is a bona fide one and it cannot be found fault with. (ii) In fact, in various portions of the judgements of both the Courts below they commented upon the conduct of the tenant that he had not deposed truthfully and he deliberately suppressed the facts, which are germane for deciding the lis. (iii) There is no law empowering the tenant to call upon the landlord to choose some other premises belonging to the landlord other than the one under the occupation of the tenant. (iv) The tenant cannot dictate terms to the landlord as to which portion of the premises the latter should select for his additional accommodation. (vi) This is a case where P.W.1 has already been doing business and he wanted to enlarge it and for that alone P.W.1s father, namely, the landlord wanted additional accommodation. (vii) In the second floor, the so called space available, as per the tenant, is nothing but an area which is covered by mere asbestos sheet and it has got no side enclosures also. In such a case the tenant cannot compel the landlord to make additional construction and use the said space. Accordingly, the learned counsel for the respondent/landlord would pray for dismissing the revision, confirming the orders passed by both the Courts below. 6. The point for consideration are as under: (i) Whether clinching evidence was not placed before the Court objectively by the landlord to prove his bona fides in requiring the demised premises for expanding his sons business? (ii) Whether there is any infirmity or illegality in the orders passed by both the Courts below? 7. Trite as it is that sufficient number of precedents emerged relating to this point. (ii) Whether there is any infirmity or illegality in the orders passed by both the Courts below? 7. Trite as it is that sufficient number of precedents emerged relating to this point. Hence, it is just and necessary to refer to two of those decisions here: (i) (2001) 8 SUPREME COURT CASES 110 – S.R.BABU V. T.K.VASUDEVAN AND OTHERS, certain excerpt from it would run thus: "14. In our view, once it is held that the landlord requires additional accommodation for his personal use, he is entitled to utilise it to best suit his requirement. The condition in which the additional accommodation is to be used by the landlord cannot be dictated by the tenant. The first respondent may use it as it exists or he may use it after necessary repairs, additions or alterations to suit his requirements. The appellant has no say in such matters." (ii) 2007( 3) CTC 152 – RASI SILKS BY ITS T.A.VENKATACHALAM, an excerpt from it would PARTNER K.ARUNACHALAM VS. RASI SILKS run thus: "21. Contention of Tenant is that the landlords can expand the hotel business on the open space available, which is abutting the premises. In his evidence, P.W.1 has stated the open space cannot be utilised for running the hotel. It is well settled that the landlord can choose the portion required and it is not for the Tenants to dictate terms. In Mookkan v. Abdul Rasheeth (deceased) and others, 1999(1) MLJ 233 , this Court has held that the landlord can choose the portion required and it is not for the tenant to dictate terms. It is not the object of the provision to weigh the hardship of the Tenant as against the test of the landlord on a delicate scale, giving the benefit of the slight tilt in favour of the tenant." 8. A mere perusal and poring over of those decisions would amply make the point clear that it is for a landlord to decide which portion of his tenanted premises should be taken back by him from the tenant through process of law for his additional accommodation, and that the tenant cannot dictate terms and as such the said issue is no more res-integra. 9. 9. The contention on the side of the tenant that in the second floor there is space, which the landlord, by slightly making some construction, could put it to beneficial use as non-residential go-down, is neither here nor there, as it is not the business of the tenant to call upon the landlord to do some additional construction etc., for the purpose of accommodating his additional requirement. 10. Objectively the bona fide intention of the landlord should be proved and there could be no quarrel over the same. It has to be seen as to whether both the Courts below applied their mind on the documents placed before them and also the oral evidence. 11. Indubitably and indisputably the RCOP was filed on 8.7.2007 by the landlord. Whereas, Ex.P7 would exemplify and demonstrate that the registration certificate was issued by the Commercial Tax Department in favour of P.W.1 in connection with his business on 11.7.2007 and Ex.P8-Form-B is also relating to the said business. The question arises as to whether those documents could be taken as an evidence to prove that P.W.1 has been doing business. Simply because there was three days delay in getting the registration certificate from the Commercial Tax Department, it cannot be doubted or looked askance at and the arguement on the side of the tenant that purely for the purpose of evicting the tenant such a document was brought about falsely, in my opinion, is too a big pill to swallow. Both the Courts below extracted certain portions of the deposition of R.W.1-the tenant and correctly remarked that deliberately the tenant wanted to suppress the factum of P.W.1 conducting business in the premises. If really no business was being carried on in the said building concerned by the landlord or by P.W.1, then R.W.1-the tenant could have come with a categorical statement in his deposition that no such business was being carried on and no textile bales were received by P.W.1 or the landlord in that premises. But on the other hand, curiously enough R.W.1 would say as though he did not know anything about it. It is quite obvious and axiomatic that R.W.1 in fact on oath did not want to utter out bare faced lie, but he wanted to be evasive by pleading ignorance. 12. But on the other hand, curiously enough R.W.1 would say as though he did not know anything about it. It is quite obvious and axiomatic that R.W.1 in fact on oath did not want to utter out bare faced lie, but he wanted to be evasive by pleading ignorance. 12. Ex.P9 was commented upon by the learned counsel for the tenant that it is nothing but a mere packing note sent by the dispatcher of the goods, namely, V.P.Oswal Hosiery Factory and no lorry delivery receipt or payment receipt was produced to display and demonstrate that P.W.1 was conducting business, at the relevant point of time. Ex.P10 is one other letter dated 18.8.2007 addressed to the said V.P.Oswal Hosiery Factory. 13. In respect of Exs.P9 and P10 the comments offered by the learned counsel for the tenat, in my opinion, would not hold water for the reason that in summary proceedings like the one under the Rent Control proceedings the Court cannot expect that the very author of the packing note should have been examined etc. What the Court is expected to do is that in an over all manner the evidence should be analysed and see as to whether the documents are believable documents or bogus or cooked up and concocted ones purely for the purpose of buttressing and fortifying falsely the case of the landlord. Here there is nothing to indicate and exemplify, cannot and denote that those documents are cooked up documents which emerged at the instance of P.W.1 or his father-the landlord. 14. The learned counsel for the tenant would submit that when best evidence is available over and above what the landlord has produced, the non production of the same would be fatal to the plea of the landlord. 15. At this juncture I recollect and and call up Section 105 of the Indian Evidence Act, even though in stricto sensu the punctilious of procedures as contemplated in the Evidence Act are not applicable in toto to the Rent Control Proceedings. Here no doubt much more evidence could have been produced by the landlord. But the core question arises as to whether such non-production is fatal and whether Exs.P7 to P10 should be taken as totally insufficient documents to arrive at a conclusion in favour of the landlord. 16. Here no doubt much more evidence could have been produced by the landlord. But the core question arises as to whether such non-production is fatal and whether Exs.P7 to P10 should be taken as totally insufficient documents to arrive at a conclusion in favour of the landlord. 16. My discussion supra would convey and clarify that both the Courts below considered those exhibits with reference to the deposition of R.W.1 and passed remarks au courant with facts that there is only evasive denial of the factum of P.W.1 carrying on business in the building where the demised premises forms a part and in such a case this Court being the revisional Court need not interfere with such a finding based on sound reasons furnished by both the Courts below. 17. I am fully aware of the fact that this Court while exercising its jurisdiction under Section 25 of the Act is having more revisional powers than exercising its powers under Article 227 of the Constitution of India as well as Section 115 of the C.P.C. Having that in mind alone I have taken care to analyse the facts including the deposition of R.W.1. In my opinion, there is nothing to indicate that this Court should take a view different from the one taken by the lower Court. 18. Hence, in this view of the matter I would like to hold that there is no infirmity or illegality in the orders passed by both the Courts below. Accordingly, the revision is dismissed. No costs. Consequently, connected miscellaneous petitions are dismissed. 19. However, I would like to grant some time for vacating the premises by the tenant. Granting four months time would meet the ends of justice. Accordingly, the revision petitioner/tenant shall on or before 8.11.2010 hand over possession of the demised premises to the respondent/landlord, subject to payment of rent regularly. An affidavit shall be filed to that effect by the revision petitioner.