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2010 DIGILAW 3458 (MAD)

Mumtaz Begum v. Sikandar Hayathunga

2010-08-11

G.RAJASURIA

body2010
Judgment :- 1. Inveighing the order dated 30.06.2005 passed in RCA No.19 of 2004 by the learned Principal Subordinate Judge, Mayiladuthurai, reversing the order dated 07.04.2004 passed in RCOP No.37 of 2001 by the learned Principal District Munsif, Mayiladuthurai, this civil revision petition is focussed by the landlady. 2. Heard both sides. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this revision would run thus: (i) The revision petitioner herein filed RCOP No.37 of 2001 as against the respondent for eviction, on the ground of owners occupation invoking Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 [hereinafter referred to as the Act]. The matter was contested. (ii) On the side of the revision petitioner, one Mohammed Ismail examined was examined as P.W.1 and Exs.P1 to P3 were marked. On the side of the respondent, he examined himself as R.W.1 along with Kaliyamurthy, R.W.2. Ultimately the learned Rent Controller ordered eviction, as against which appeal was filed. The appellate authority reversed the finding of the learned Rent Controller and dismissed the RCOP. 4. Being aggrieved by and dissatisfied with the order passed by the appellate authority, this revision has been filed on various grounds by the landlady. 5. The learned counsel for the revision petitioner reiterating the grounds of revision, would develop her argument to the effect that the landlady clearly proved her bona fides in requiring the premises for her sons business. Even though in the petition or in the pre litigation notice, there may not be any details relating to the business and also about her sons requirement, while adducing evidence, the landladys husband/P.W.1 clearly and categorically spelt out that the premises is required for the son of the landlady. In fact, cross examination also was done challenging the actual requirement of the landlady. The parties litigated understanding their respective pleas. In such a case, it would not lie in the mouth of the tenant to contend that there were lack of pleadings etc. 6. The learned counsel for the petitioner would also contend that once the bona fides are writ large, then trying to pick holes in the case of the landlady by the tenant would not in any way be tenable. 6. The learned counsel for the petitioner would also contend that once the bona fides are writ large, then trying to pick holes in the case of the landlady by the tenant would not in any way be tenable. The tenant has come forward with a specific case as though the landlady is having some mala fide intention in getting more rent etc., but that was not at all established. In such a case, the appellate authority should not have upset the findings of the learned Rent Controller, who happened to be the first Court of facts and who had the opportunity of observing the demeanour of the witnesses and give a finding thereon. Accordingly, the learned counsel for the revision petitioner prays for setting aside the order of the appellate authority and for restoring the order of the Rent Controller in ordering eviction. 7. Per contra, by way of refuting and challenging, impugning and gainsaying the contentions as put forth on the side of the landlady, the learned counsel for the tenant would put forth and set forth his arguments, which could tersely and briefly be set out thus: In the pre litigation notice sent by the landlady, there was no specification at all as to the nature of the business which she wanted to start in the demised premises. In the reply notice also the tenant highlighted such deficiencies. Despite that while filing the RCOP, it is found stated as though the demised premises is required for the landladys own business purpose and she had not shown even in the petition that the demised premises was required for her sons iron business. The landlady or her son was not examined, but only the landladys husband was examined and for the first time before the Rent Controller he would depose, as though the demised premises was required for his sons iron business. No evidence also adduced to highlight that at atleast preparations in the right direction were made by the landladys son for starting such business. Accordingly, the learned counsel for the tenant would implore and entreat that the revision petition might be dismissed, as according to him the finding of the appellate authority warrants no interference of this court. 8. No evidence also adduced to highlight that at atleast preparations in the right direction were made by the landladys son for starting such business. Accordingly, the learned counsel for the tenant would implore and entreat that the revision petition might be dismissed, as according to him the finding of the appellate authority warrants no interference of this court. 8. The point for consideration is as to whether the appellate authority unjustifiably upset the finding of the learned Rent Controller in ordering eviction, and whether there is any perversity or illegality in the order passed by the Rent Controller? 9. At the outset itself, I would like to refer to the following decisions of this Court cited on the side of the learned counsel for the tenant: (i) 1997(III) CTC 339 [T.S.Sethuraman v. J.Nagalakshmi and another], an excerpt from it would run thus: "15. In the evidence, P.W.1 has stated that the premises is required for his sons electrical business. He has further stated that the premises is required for residence and for business. But, unfortunately, that was not the case pleaded in the petition. But P.W.1 in his evidence has stated that there was already business at Madras. The way in which the landlord has come forward with his case stating one reason in the petition and another reason in his evidence will clearly show that the requirement of the landlord of the premises in question is not a bona fide one. The authorities below have not properly appreciated the pleadings and evidence." (ii) 1981(1) MLJ 40 [K.Gopalan Nair v. V.Kamalammal], an excerpt from it would run thus: "3........."carrying on business" may consist of a series of steps, and even if one step is proved, they did not see why the requirement is not satisfied, but if there is no step at all whatever and the matter is only in the stage of intention, it is difficult to bring such a case within the phraseology of the statute, namely section 10(3)(a)(iii) of the Act." The aforesaid decisions would unambiguously highlight and spotlight the fact that if there is no consistency between the pleadings and the evidence adduced, then certainly the landlords bona fide requirement of the demised premises cannot be presumed. Here the above narration of facts as put forth on both sides would clearly exemplify and demonstrate that in the pre litigation notice as well as in the RCOP filed by the landlady, absolutely there is nothing to indicate that the properties are required for the iron business of the landladys son. However, the averments in the application would only connote as though she required the premises only for the purpose of her own business and even the nature of her business was not found exemplified in the petition. The learned counsel for the landlady would submit that in rent control proceedings, the Court need not insist upon the strict rule of pleadings as contemplated in civil proceedings. At this juncture, I hark back to the following maxim: Judicis est judicare secundum allegata et probata : It is the proper role of a judge to decide according to the allegations and proofs, Such principle, I know, should not be pressed into service in stricto sensu in rent control proceedings. Even then the fact remains that there should be atleast some averments as to what for specifically the landlady requires the premises. In the petition she would contend as though the premises is required for her business, without even mentioning what is the nature of the business which she is intending to commence. 10. The learned counsel for the landlady would submit that the revision petitioner is a pardanishi lady and in such a case, she cannot be expected to detail and delineate regarding the nature of the business which she wanted to undertake. That itself would show that in fact at the time of filing the application, the landlady being a Pardanishi lady had no intention to commence any business. However, as per the evidence of P.W.1, her husband, it is the landladys son who was going to commence business. The decisions of this Court cited on the side of the tenant referred to supra would clearly display and demonstrate that when there is no consistency between the pleadings and the evidence, then the bona fide attitude on the part of the landlady cannot be presumed. I would like to agree with the views taken in the aforesaid two decisions of this Court cited on the side of the tenant. There is also nothing to indicate that preparations were made by the landladys son for starting the business. 11. I would like to agree with the views taken in the aforesaid two decisions of this Court cited on the side of the tenant. There is also nothing to indicate that preparations were made by the landladys son for starting the business. 11. The learned counsel for the landlady would submit that unless the demised premises is shown as vacant, the question of obtaining licence for running the business would not arise. Then in such a case, there should be some evidence indicating that some application was filed and returned on that ground, but even that was not done so. There is also no indication that the landladys son corresponded with any of the wholesale iron merchants for the purpose of obtaining supply of goods etc. As such, when there is no evidence at all before the Court, the Court cannot assume and presume as though the intention of the landlady was bona fide and that too in the peculiar facts and circumstances of the case as highlighted supra. The landlady herself was not examined for which the learned counsel would submit that she happened to be a Pardanishi lady and hence her husband was examined. The landladys son who actually intended to commence business also never figured as a witness and detailed and delineated as to what were all the steps he took in the process of commencing business. As such, I am of the considered view that this is a case in which the landlady miserably failed to establish before the Court her bona fides for requiring the premises for the purpose of conducting either her business or her sons business. As such, the appellate authority correctly set aside the finding of the Rent Controller and dismissed the RCOP warranting no interference in this revision. Accordingly, this civil revision petition is dismissed. No costs.